Hanna v Council of the City of Ryde

CASES CITED: Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155

APPLICANTS Mr Ken Willis, Agent

LEGAL REPRESENTATIVES: RESPONDENT Mr Strati, Solicitor City of Ryde Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 ACTING REGISTRAR: This is an application made by the applicants in the proceedings seeking leave to rely on an amended development application. The substantive application concerns an appeal by the applicant against the refusal by the respondent, the Council of the City of Ryde, of a development application seeking dual occupancy of a duplex located in Eastwood. The original development application also sought approval for demolition of old out buildings and the erection of a new carport together with the construction of a driveway.

2 The nature of the amendments can be ascertained having regard to a document entitled 'Amended plans and Statement of facts in reply', which was filed on 6 April 2010. Firstly, the applicant now proposes to omit the proposal for the construction of the carport and the driveway. Secondly, the amended plans now provide details of the proposed fencing and gates. Thirdly, and most significantly, the applicant now proposes that the development application is to be subject to the State Environmental Planning Policy No 70 - Affordable Housing ("the SEPP"). This is the first indication provided by the applicants that the intention of the dual occupancy was for the provision of affordable rental housing. Therefore, whilst the applicant has declined to specify that this is a change to the development application, the effect of this indication is to amend the development application such that it is now proposed that, in accordance with cl 11 of the SEPP, "at least 50% of the dwellings in the proposed development will be used for affordable housing".

3 The applicants rely on the affidavit of Mr Willis, the consultant town planner for the applicants who is also the agent for the applicants and appeared on their behalf in relation to this application. That affidavit sets out the fact that Mr Willis, at the time of commencing these proceedings and up to 1 April 2010, was unaware of the existence and the relevance of the SEPP. Mr Willis also asserted in the amended document referred to above that the SEPP was not amended to its current version until after the development application was lodged. However, it is clear from the historical notes that the amendments to the SEPP commenced on 31 July 2009.

4 Mr Willis says that, in light of his opinion that the development application now complies with the SEPP, to allow the amendments would be to facilitate the quick, just and cheap resolution of the real issues in the proceeding. He submits that this is particularly so in circumstances where anything set out in the SEPP prevails, to the extent of any inconsistency, over the Council's planning instruments.

5 Mr Willis also submits that the introduction to the development application of the proposal that it will provide affordable housing is not a new use of the premises. He says that the proposal always has been for dual occupancy and that remains unchanged by the amended plans. Mr Willis submits, on behalf of the applicants, that it was always proposed that the dual occupancy incorporate student housing, which he says is considered affordable housing.

6 The respondent opposes leave being granted on a number of grounds. Firstly, the respondent submits that the nature of the amendments result in a new development application. Specifically, the respondent says that the proposal that the development application is to be subject to the SEPP results in a change in the use of the premises from a dwelling to a use for affordable housing. The respondent also submits that it therefore restricts the use of the premises for a use of at least 50% for the provision of affordable housing. The respondent submits, therefore, that the amendment results in a new development application which is subject to a new assessment regime and therefore leave ought not be granted to make the amendments as proposed.

7 Secondly, the respondent submits that if the Court finds that the amendments do not constitute a new development application, there are a number of discretionary reasons upon which leave to amend the development application should be refused. Specifically, the respondent points to the history of the proceedings and the fact that the development application was lodged in September 2009, that an appeal to this Court was lodged in February 2010 and that the matter has been the subject of a number of appearances before the Court. Further, a similar proposal was refused by the Court in earlier proceedings in December 2008. The respondent also points to the fact that this application was lodged less than 1 month prior to the hearing. Further, the respondent says that in light of the nature of the amendments, the Council would not have sufficient time to conduct an assessment of the modified proposal in advance of the hearing of the proceedings. Mr Strati, who appeared for the respondent, indicated that the Council may also be required to re-notify the development application. Mr Strati says that a necessary consequence of the nature of the amendments and the delay in the present application being made would be that the hearing date, currently fixed for 4 May 2010, would be vacated. In those circumstances the respondent says that it is not appropriate for the Court to exercise its discretion in favour of granting leave to the applicants to amend the development application.

8 The breadth of the case law on the Court's power to grant leave for amended proposals was outlined by Jagot J in Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155. Whilst Her Honour considers that a broad approach to the Court's power is appropriate, she outlines two questions that the Court must consider in determining whether it is appropriate to grant leave. The first question is based on the limit on the Court's power that has been consistently recognised - that the Court has no jurisdiction to entertain an original development application. The Court must therefore consider whether the amendments to the plans are so dramatic as to constitute a new development application. It is clear, therefore, that if I accept the respondent's submissions that the amendments constitute a new development application, the Court therefore has no jurisdiction to deal with the same. The second question the Court must ask is whether there are any discretionary reasons why leave ought not be granted.

9 If leave is granted, I must then make an order that the applicant pay the R's costs pursuant to s 97B of the Environmental Planning and Assessment Act 1989, unless I find that the amendments constitute a "minor amendment".

10 The deletion of the carport and the driveway, and the details provided in relation to the fence and gates, are an amendment to the original development application and do not constitute a new development. However, I cannot accept that the proposal that the SEPP now applies to the development application falls into the same category. This proposal is the first indication by the applicants that it is intended for the dual occupancy to also provide at least 50% affordable rental housing. No such intention had been previously articulated in the plans or in the Statement of Environmental Effects. The reference by the applicants' agent to an intention for the premises to provide student housing is not supported by any evidence provided in support of the original development application. The fact that the applicants and their agent were not aware of the amendment of the provisions of the SEPP at the time of lodging the development application is unfortunate, but it is not relevant. 11 The consequence is that there is proposed to be introduced a new use of the premises for affordable rental housing. This new use was not before the respondent Council when the development application was lodged. The use of the premises for at least 50% affordable housing is therefore a use that constitutes an original development application.

12 Further, this change in use also results in a new assessment regime applying to the proposal. Whereas the original development application was to be assessed under the Ryde Development Control Plan 2006 only, the new use requires assessment with regard to the SEPP. Therefore fresh consideration is required in relation to the new proposed use.

13 Therefore, whilst the overall proposal for dual occupancy has not changed, the introduction of a proposal for affordable housing causes the development to be so altered that it now requires a new assessment not previously conducted by the Council. In those circumstances the proposed changes to the development render the amended development application an original application which falls outside the jurisdiction of the Court. On that basis I decline to make the orders sought by the applicants.

14 In forming this view I accept the respondent's submission that the amendments propose a new use and therefore a new development application. I therefore need not consider the respondent's submissions concerning the reasons as to why the Court should not exercise its discretion to grant leave to amend the development application.

15 The notice of motion filed on 20 April 2010 sought two separate orders in relation to the proposed amendments to the development application. The first order concerns the deletion of the carport and the driveway, and the second order relates to the SEPP. Given that all of these amendments were sought together for the purpose of proposing the new use for affordable housing, it is appropriate that I make neither of those orders. The notice of motion also sought a third order concerning the Amended Plan and Statement of Facts in Reply, however I decline to make that order on the same basis. The notice of motion should therefore be dismissed. The respondent sought its costs of the appearance before me yesterday in the event that the notice of motion was dismissed. The respondent indicated that those costs would be in the sum of $350.

16 I accept that in circumstances where the applicants have sought to obtain leave to amend the development application, and has been unsuccessful in doing so, it is fair and reasonable for the applicants to pay the respondent's costs. I accept that a figure of $350 is appropriate and that to save the cost of a an assessment I ought to make an order in that sum. 17 I make the following orders: 1. The notice of motion filed by the applicants on 20 April 2010 is dismissed; 2. The applicants pay the respondent's costs in the sum of $350.

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