PROCEDURE: application to reopen case to adduce an amended written request to vary a development standard
application granted
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PROCEDURE: application to reopen case to adduce an amended written request to vary a development standardapplication granted
Judgment (4 paragraphs)
[1]
Judgment
COMMISSIONER: The applicant filed a Notice of Motion on 16 May 2018, the day following the hearing in which I reserved my decision, seeking the reopening of the case to adduce further evidence that the applicant claimed addressed matters first raised by the respondent in closing submissions.
The proceedings were heard under the relevant provisions of s 34AA of the Land and Environment Court Act 1979 ("LEC Act"). The conciliation phase of the proceedings commenced onsite on 14 May 2018 and the parties returned to Court to further conciliate the matter during the afternoon of 14 May 2018. As an agreement was not reached by the parties, the conciliation conference was terminated on the morning of 15 May 2018 and the hearing was held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.
The proposal breaches the 9.5m height of buildings development standard in Ku-ring-gai Local Environmental Plan 2015 ("LEP 2015") in two locations (as indicated on the architectural plan tendered in the substantive proceedings as exhibit B) (Hardy v Ku-ring-gai Council (No. 2) [2018] NSWLEC 1246), the proposed rear dormer addition and the roof ridge of the extension of the rear wing on the western side of the site.
Mr Palmer submitted that the written request to vary the height of buildings development standard, which accompanied the development application and the Class 1 Application, referred only to the breach of the height of buildings development standard by the proposed new attic dormer. A further written request to vary the height of buildings development standard was written by the applicant's planning and heritage expert, Mr Brian McDonald, and was annexed to the planners' joint report (exhibit 3). Mr McDonald's written request does not specifically refer to the breach of the height of buildings development standard by the extension of the rear wing, although it was drafted to deal with height breaches generally.
Hardy v Ku-ring-gai Council [2018] NSWLEC 1245 | Case summary | Zoe
The contention included in the Statement of Facts and Contentions (exhibit 1) regarding the inadequacy of the written request to vary the height of buildings development standard was explicitly pressed by Mr O'Gorman-Hughes in opening in the substantive proceedings, although I accept that the omission of a reference in the written request to the breach caused by the extension of the rear wing was not articulated until closing submissions.
Mr Palmer submitted that neither the Council in its initial correspondence with the applicant nor the respondent raised an issue regarding the omission of a reference to the extension of the rear wing breaching the height of buildings development standard, and therefore the first time the applicant became aware of the omission was when it was referred to by Mr O'Gorman-Hughes in his closing submission. I do not accept the submission that the omission in the written request to refer specifically to an area of the proposal that breached the height of buildings development standard was only an issue if it was raised by the respondent. I do accept that the applicant only became aware of the omission at the end of the hearing. As is evidenced by the applicant's response when the omission became apparent, it is potentially a jurisdictional issue and the applicant is responsible for the integrity of its own application.
The applicant was certainly aware of the breach of the height of buildings development standard by the extension of the rear wing of the proposal, because it is clearly indicated on the drawings in exhibit B (drawings 19-23 revision C). It was simply an oversight by the applicant that neither the written request authored by the architect or the later version authored by Mr McDonald in response to the Statement of Facts and Contentions referred specifically to the breach of the height of buildings development standard by the extension of the rear wing.
In the substantive proceedings, the Council relied on the expert planning evidence of Ms Janice Buteux-Wheeler. A joint report of the planning experts was tendered as exhibit 3 and the experts were not required to give oral evidence. The plans considered by the experts are annexed to the joint report with the addition of a title including "Experts joint report" and dated 12 April 2018. Those plans indicate the 9.5m height above existing ground level on drawings 18B, 19C, 20C, 21C. I note that the experts' have referred to an earlier revision of plans 19B, 20B and 21B being considered at paragraph 9 of exhibit 3, however, the plans attached to the joint report clearly show the 9.5m dashed line across the elevations and section and so I am satisfied that the planning experts considered, or at least had before them in documentary evidence, the full extent of the breach of the 9.5m height above existing ground level, including that parts of the roof of the extension of the rear wing breached the height of buildings development standard.
I accept that the joint report in considering the breach of the height of buildings development standard only referred to a breach by the "dormer proposal". Exhibit 3 includes references to the existing building height at the main ridge of the existing dwelling as being 10.75m above existing ground level and to the "dormer proposal" exceeding the height of buildings development standard. Mr McDonald referred in exhibit 3 at paragraph 21 to the exceedance of the height of buildings development standard applying "solely to a dormer in the rear face of the roof".
Nevertheless, I do not consider it is necessary to adduce further planning evidence in response to the admission into evidence of the amended written request (exhibit N) because the planning experts have broadly addressed the impact of the breaches of the height of buildings development standard by the proposal in their joint report. Furthermore, the amended written request (exhibit N) addresses the potential jurisdictional issue by specifically referring to "the extension of the western wing", but it does not raise any new merits matters justifying the breach not already raised in the earlier written request. The amended written request (exhibit N) adds a section referring to sufficient environmental planning grounds to justify the contravention, but this section essentially repeats the merits matters justifying the breach already referred to in the written request.
The parties drew to my attention the relevant principles in determining whether leave to reopen ought to be granted, as articulated by Pepper J in Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35 [13]-[15].
I make the following orders pursuant to s 61(1) of the Civil Procedures Act 2005, as I am satisfied that it is in the interests of the just, quick and cheap resolution of the real issues in the proceedings that the application not fall at the first hurdle on a potential procedural jurisdictional issue that can be cured by an amended written request to vary the height of buildings development standard. I am satisfied that there is no prejudice to the respondent in allowing the applicant to amend its written request in this way.
[2]
Costs order
Although a Commissioner of the Court does have power to make a costs order in relation to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (Nada v Georges River Council [2017] NSWLEC 80 [10]), I cannot make an order as to costs for the amendment of the application because s 8.15(3) does not apply to proceedings to which s 34AA of the LEC Act applies.
The Practice Note - Class 1 Residential Development Appeals includes the following in relation to an application for a costs order and it is to be heard and determined by the Registrar or a Judge of the Court:
Applications for a cost order
102. Where a Commissioner has heard and determined a residential development appeal, any party seeking an order for costs of the proceedings must apply for costs by notice of motion filed within 28 days of the making of the final orders in the proceedings.
Note: Pt 3 r 3.7 of the Land and Environment Court Rules 2007 provides that for proceedings in Class 1 of the Court's jurisdiction, including residential development appeals, the Court "is not to make an order of the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances": Pt 3 r 3.7(2). Some of the circumstances in which the Court might consider the making of a costs order to be fair and reasonable are listed in Pt 3 r 3.7(3).
70. [sic] The notice of motion for costs will be heard and determined by either the Registrar or a Judge of the Court.
Therefore I have no power to make an order as to costs.
[3]
Orders
The orders of the Court are:
1. The applicant is granted leave to reopen the proceedings to adduce further evidence in the form of an amended written request to vary the height of buildings development standard pursuant to clause 4.6 in the Ku-ring-gai Local Environmental Plan 2015.
Susan O'Neill
Commissioner of the Court
[4]
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Decision last updated: 24 May 2018