Hakim v Canada Bay City Council

KEY ISSUES: Development Application :- Application to amend plans - whether amendment within scope of Environmental Planning and Assessment Regulation 2000 cl 55

LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Rules 1996 Pt 10 r 1

CASES CITED: Ebsworth v Sutherland Shire Council [2005] NSWLEC 603; Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292

APPLICANTS: Mr P Tomasetti, barrister SOLICITORS D C Balog & Associates

FIRST RESPONDENT: LEGAL REPRESENTATIVES: Mr P Jackson, solicitor SECOND RESPONDENT: Mr I Hemmings, barrister SOLICITORS FIRST RESPONDENT: Pike Pike and Fenwick SECOND RESPONDENT: Lindsay Taylor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MICK BECHARA HAKIM AND YVONNE HAKIM v CANADA BAY CITY COUNCIL AND ANOR.

JUDGMENT HIS HONOUR: 1 The applicants by notice of motion seek leave to amend their plans in this appeal in class 1 of the Court's jurisdiction. The application is opposed. The two issues are whether there is power to grant the amendment and whether, as a matter of discretion, the power should be exercised in favour of the applicants. Clause 55 of the Environmental Planning and Assessment Regulation 2000 provides: (1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined.

(2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development.

2 The appeal is from the refusal by the respondent council to grant consent to a development which is described in its notice of determination as construction of a seawall, swimming pool, retaining wall and access stairs, landscaping, relocation of boulders and the excavation and levelling of the site.

3 The site is located on the Parramatta River. There are a number of related proceedings, four in all. All the proceedings have been fixed for hearing over three days on 6-8 November. I do not think that it is necessary for present purposes to delve into the precise inter-relationship of all the proceedings, save to say that they are all closely related in one way or another.

4 The matter has been in the list for case management and for directions on a good number of occasions. On 30 August 2006 the parties' experts met at the site. Following that meeting the applicants were advised that all experts agreed that the plans were deficient and could not be supported. It appears that the primary problem was that the proposal showed a large high wall that would be visible from the Parramatta River, which was regarded as objectionable. One of the experts present on that occasion was the applicants' town planner, Mr David Thurlong, who advised that in consequence of the on-site experts' meeting, and the matters there arising, he could not support the plans the subject of the application. There appears to be no evidence that Mr Thurlong was of that view at any earlier point in time. The inference would therefore appear to be that what occurred on that occasion was causative of the view that he formed. Thereafter, the applicants instructed their architect to make changes to the plans to address the concerns of the experts. This has resulted in the new plans which are now before the Court and which are the subject of this application for leave to amend.

5 The legal principles relevant to an application to amend plans were recently reviewed in Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292 at 295-296 [6] - [10] by Jagot J: [6] In Ebsworth v Sutherland Shire Council Talbot J summarised the various approaches that have been taken to applications to amend plans. One limit on the power available under cl 55 has been consistently recognised -- that the Court has no jurisdiction to entertain an original development application. The criteria used to determine whether an amendment converts an application the subject of appeal into an original application, however, has varied (see, for example, Ebsworth v Sutherland Shire Council at [33]).

[7] At [40] in Ebsworth v Sutherland Shire Council , Talbot J observed that: It is my view that Regulation 55 is beneficial and facultative and intended to facilitate the making of amendments on two accounts. Firstly to enable the applicant for consent to respond to any issues identified by the council or objectors and secondly to encourage a consent authority to solicit a better outcome. A broad approach to the application of Regulation 55 is therefore appropriate.

[8] I also consider that a broad approach to both the scope and application of cl 55 is appropriate. Clause 55 enables any application to be amended or varied with the agreement of the consent authority at any time prior to determination. An amendment or variation, as cl 55(2) contemplates, may result in change to the proposed development. The extent of change able to be authorised by agreement of the consent authority or by the Court exercising that function on appeal (and which does not result in the conversion of the application into an original application) will depend upon the facts of the particular case (including, for example, the nature of the site and the nature and characteristics of the proposed development).

[9] The availability of the power is to be determined having regard to the beneficial and facultative nature of the provision. That is, I consider that cl 55 ought to be construed so as to give "the widest interpretation which its language will permit" ( Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 260-261 per McHugh J referring to Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113 at 119 per Rich J).

[10] The question whether the power should be exercised in a particular case (that is, should the Court, exercising the functions of the consent authority agree to the amendment or variation sought) is also to be answered having regard to the beneficial purpose of the provision. The factors relevant to that question will vary depending upon the circumstances in which the application is made (including, for example, the time at which the application is made and the reasons for making the application). … [16] [Counsel] for the Council submits that the test to determine whether the changed development converts the application into an original application is whether the proposed development is " substantially the same " as the development the subject of the development application lodged with the Council (prior to its first amendment). That test has been applied in some cases, as the discussion in Ebsworth v Sutherland Shire Council discloses. I do not consider that the " substantially the same " formula (apparently derived from the modification power in s 96) reflects the full extent of the power available under cl 55. I prefer to ask whether the development now proposed is an amendment or variation of the application, recognising that an amendment or variation may result in change to the proposed development, but that the Court has no jurisdiction to entertain an original application.

6 In Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 at [40] Talbot J suggested the following criteria, upon which some reliance was placed in the present case: It is my view that Regulation 55 is beneficial and facultative and intended to facilitate the making of amendments on two accounts. Firstly to enable the applicant for consent to respond to any issues identified by the council or objectors and secondly to encourage a consent authority to solicit a better outcome. A broad approach to the application of Regulation 55 is therefore appropriate.

7 An analysis of the facts in Ebsworth and in Radray suggests a liberal application of the amendment power. In Ebsworth the amendments included the re-siting of a building, a reduction in its height, amendment of its physical character to enhance historical and cultural heritage, reduction in its bulk, provision of a mix of cladding and substantial changes to car park arrangements. In Radray many of the changes allowed resulted from the fact that the original proposal substantially realigned a creek running through the site. In the amended proposal a greater proportion of the creek remained in its original alignment. The consequence was that in order to accommodate the same intensity of development, three buildings rather than one were proposed, two of them to the west and one to the east of the creek; and the basement car park was also in two parts. Thus the changes to the development included changes to the built form (which now comprised three buildings instead of one), division of the basement car park, a new access way, changes to levels, changes to roof forms and changes to elevations.

8 Turning now to the present case, it is necessary to compare the plans the subject of the existing appeal and the proposed new plans. The differences are summarised in paragraph 9 of the affidavit of Brian Krohn of 10 October 2006. The respondents emphasised the extent of the changes in the proposed plans. Working inland from the water, it was said first, that the amended plans no longer require the relocation of rock floaters (by which is meant some sandstone boulders from a partially collapsed cliff). Secondly, the seawall which appears in the existing plans now no longer appears. Thirdly, there is now proposed to be virtually no excavation, in contrast to the substantial excavation which appears in the existing plans. Fourthly, the stairs in the existing plans are depicted running across most of the site, whereas now they will be confined to a small part of the north-eastern boundary. Fifthly, the retaining walls have been deleted, at least on the water side of the swimming pool. Sixthly, the usable waterfront space has been removed in the proposed plans. Finally, the structured landscaping which appears in the existing plans, has been replaced by natural foreshore.

9 The respondents acknowledged that these changes, which involve in part pushing fallen boulders from a rock fall further back up the hill, were likely to ameliorate at least some of their objections to the development.

10 Nevertheless, the respondents submitted that really there was little, if anything, left of the existing proposal other than the swimming pool. They also submitted that the amended drawings were inadequate to properly assess the impact of the proposed development in a number of respects, which are summarised in paragraph 10 of the affidavit of Mr Krohn to which I have earlier referred. Because of what was said to be the substantially different nature or character of the development, as appearing from the proposed plans, the respondents submitted that the proposal was not substantially the same, that the development would lose its identity, and that it did not satisfy the criteria referred to in Ebsworth.

11 The respondents submitted that even if there were power to allow the application for amendment, the Court's discretion should be exercised against the applicants. It was pointed out that the matter has been in the Court's list for roughly in the order of twelve months, and that there have been a good number of callovers and much case management. Some criticism was directed by the respondent council to the fact that on 26 July of this year there was a case management hearing at which the applicants' expert, Mr Thurlong, was present, where he did not indicate that he did not support the existing proposal. I do not, however, regard that as a matter which I should hold against the applicants because it seems that it was at the subsequent meeting of experts in August, and as part of that process, that he formed a view adverse to the applicants' existing plans. It was also submitted that the alleged inadequacy of the drawings should count against the applicants as a discretionary consideration.

12 The applicants submitted that there is power to grant this application and placed primary emphasis on the criteria in Ebsworth. The first of those criteria was whether the development as amended could be regarded as the same development as the one originally proposed in the context of the characterisation of the overall concept. The applicants submitted that the development was a relatively simple one, which sought consent to access stairs, a swimming pool, a seawall and landscaping on the foreshore of the applicants' property. The applicants said the application, as amended, is still for access stairs, a swimming pool and landscaping. The seawall has been deleted, as has the proposal to relocate boulders. So, the applicants submitted, whilst the design of the stairs have changed, the essential character of the work is unaltered. The pool remains the same. The landscaping layout has altered, but is still landscaping of the same areas, and the deletion of the seawall and the relocation of boulders was done to simplify the whole process and the development application by containing all the work on the applicants' land.

13 The second criteria in Ebsworth was whether there are essential changes that are so altered in the context of the consideration of the development that they place the development in a different category for the purposes of the assessment. The applicants submitted that it cannot be said that the changes are so different that the development becomes differently categorised or characterised.

14 The matter becomes one of forming a judgement by reference to the facts. The proposed amendments will lead to a changed development in the respects to which I have earlier referred. The competing considerations are, I think, more finely balanced than usual. However, it seems to me that, on balance, the essence of the development remains the same. I consider that the changed development depicted in the amended plans, having regard to the particular circumstances, falls within the scope of cl 55. There is therefore power to allow the amendment.

15 In looking at the matter of discretion, I consider that the matters of inadequacy to which the respondents point concerning the proper assessment of the impact of the proposed development, are insufficient of themselves to support the exercise of the discretion against the applicants. The applicants have indicated that some of those matters they propose to deal with by expert evidence, and others they see no substance in. Those in the latter category the Court will have to determine in due course, and if there is an inadequacy which is fatal to the determination of the application, then the applicants will have to live with that consequence. Those in the former category are matters not only for evidence, but probably for case management, so that the issues can be properly defined. A factor in favour of granting leave to amend is that the changes made are responsive to the opinions expressed at the joint conference of the experts. After weighing the various considerations, I propose to allow the amendment.

16 It has been submitted by the respondents that if I were minded to make the decision which I have just made, the hearing date should be vacated. One of the matters relied on is that there was a direction in August of this year that the parties file their statements of evidence by the end of September, but that this was not done because of the indication that had been given by the applicants that amended plans were to be lodged. It was also put that the issues defined by the council as long ago as last year may need to be changed in light of these amended plans. Generally, it was put on behalf of the respondents that there will be a need for further case management. Reference was made to an indication by the applicants, during the course of argument before me, that some further expert reports should be provided by a date around 23 October 2006. As a matter of fairness to the respondents, the hearing date should be vacated, and there should be directions to accommodate the new plans that have been put forward. Every reasonable endeavour must be made for the matter to be heard and disposed of this year.

17 Since delivering the above reasons I have heard argument on costs which I propose to reserve.

18 The orders that I will make are: 1. Leave is granted to the applicants to amend the application in accordance with the plan annexed to the affidavit of David Charles Balog sworn 4 October 2006 pursuant to r 10.1 Land and Environment Court Rules 1996. 2. The hearing dates of 6-8 November 2006 are vacated. 3. I direct that if dates are available, the matter is to be fixed for hearing later this year. 4. I direct the legal representatives of the parties to confer overnight and endeavour to agree short minutes of directions, which should be reduced to writing, and to attend the Registrar's list on 12 October 2006 with a view to directions being made for the interlocutory progress of the matter. 5. Each party is to pay its own costs of the notice of motion. 6. The issue of costs thrown away occasioned by the vacation of the hearing date and the amendment is reserved.

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