Howard-Jones v Leichhardt Council [2015] NSWLEC 1309 | Case summary

Whether to admit the amended proposal

The second question is whether it is appropriate to exercise the Court's discretion to grant the applicant leave to amend the application.
The evidence is that the joint conference of the planning experts took place on-site on 1 July 2015 and their joint report is dated 6 July 2015. All substantive matters in regard to the Council's contentions regarding loss of public views, loss of private views, prohibited development in the foreshore area and visual bulk and overshadowing are agreed by the planning experts in favour of the Council's position. Having agreed on the issues, the planners' joint report fails to recommend modifications of the proposal, which is inconsistent with the experts' obligation under the Court's policy, 'Conference of Expert Witnesses' at 5. Objectives of joint conferences, 'in planning appeals, to provide the opportunity to explore alternative solutions to issues'. The Court's Practice Note at par 38 requires the applicant to apply for leave to amend its application as soon as reasonably possible and usually no later than 3 working days after the circumstances which prompted the applicant to seek to amend the proposal. The late timing of the planners' joint report made it impossible for the applicant to adequately comply with this requirement with a resolved, fully considered and final proposal, that responded to the planners' agreement on the issues, in time for the commencement of the hearing on 8 July, 2015.
The Revision C proposal was presented at the conciliation on 8 July 2015, not having been served on the Council. Following the adjournment of the conciliation conference, the Revision C proposal was shown to be not practicable by the untimely provision of the Douglas Partners geotechnical assessment report on 21 July, 2015, which then generated yet another attempt by the applicant at a suitable proposal that responded to this site constraint. This demonstrated that the applicant was not ready to proceed with its residential development appeal when the hearing commenced on 8 July 2015.
I accept the Council's submission that the Revision E proposal in some respects goes beyond simply addressing the contentions raised and constitutes an architectural response to a somewhat new and different brief that raises new issues. The Revision E proposal cannot be described as necessarily resulting in lesser environmental impacts when compared to the application. The difficulty is that the Revision E proposal has not been assessed by the Council or by the experts and it has not been notified to the resident objectors. I would not exercise my discretion to make the orders sought given the timing of the application, as it would require another vacation of the hearing dates to allow for the Revision E proposal to be properly assessed and notified. Furthermore, I am not satisfied that the Revision E proposal is in a complete and final state and suitable for assessment at the hearing.
The mismanagement of the timing of the milestones necessary to achieve a complete and final residential development proposal for the hearing dates has made a mockery of the Court's requirements as set out in the Court's Practice Note. Having regard to the wider objects of the administration of justice, it is entirely inappropriate to substitute the Revision E proposal for the application, because it is not in the interest of a just resolution of the proceedings. Accordingly, the Court Orders are as follows:

Council's submissions

It is the Council's submission that the Revision E proposal does not come about as a result of any issues raised by Council or the objectors, but has instead, 'sprung from the applicant, unsolicited'. It is the Council's view that the new proposal constitutes an original development application and, as such, the Court cannot deal with the Revision E proposal.
The Council submits that neither the Revision D nor E proposals satisfactorily address the Council's contentions and that the Revision E proposal raises new contentions, which are, in summary, as follows:

The proposed guest bedroom was located within the existing dwelling in the Revision A application and is part of a new addition to the existing dwelling in the Revision E proposal. The proposed addition in the Revision E proposal impacts upon the existing exposed rock face in the front yard;
The Revision A application retained the existing single car garage and the Revision E proposal includes the demolition of the existing garage and the construction of a new double carport. The double carport will impact upon views across the site to the Parramatta River and will result in additional bulk and visual intrusion;
The cabana is repositioned in the Revision E proposal and in its new position it may have a detrimental impact on views from the adjoining property to the north-east;
The design of any works in the vicinity of the road reserve are to be supported by geotechnical and structural engineering reports and are to be designed to accommodate the future raising of the adjacent footpath in Phoebe Street. The necessary raising of the proposed carport slab could be addressed by condition;
The double carport will result in the loss of an on-street car parking space;
A stormwater management plan is required to address the issues of if the property is to drain to the harbour, the applicant must provide written agreement to an easement over the downstream property and it must be demonstrated that an overland flowpath can be provided from the central courtyard to the rear of the property;
A Geotechnical Report is required to demonstrate that the demolition of the existing garage and construction of a double carport and addition to the existing dwelling adjacent to the excavated rock of the Council's roadway is achievable;
The Revision E proposal shows five trees to be removed and two to be retained, however, it is uncertain as to whether the proposed works will permit the retention of the two trees and no Arboricultural report has been provided.

The Council submits that the question of whether leave should be granted for the applicant to rely on the Revision E proposal is a matter of fact and degree and is not simply a matter of comparing the Revision A application with the Revision E proposal. Quoting Lloyd J, in Waite v Blacktown City Council [2004] NSWLEC 157 [25]-[26], the Council submits that no assessment of the Revision E proposal has been undertaken and the public are not aware of it: 25. Even if the development application as amended was for lawful uses and the amendments did not amount to a fresh application, the Court nevertheless retains a discretion as to whether to admit the amended plans. 26. In the present case I would exercise the Court's discretion in favour of the council. Considerations of fairness and public involvement suggest that the council should in the first instance have the opportunity of considering the amended application, following the same kind of public notification process that preceded the assessment of the original development application. The adjoining landowners, in particular, may wish to make submissions on the impact upon them of the development now proposed.
The Council further submits that any undertaking by the applicant as to costs is not a panacea to the prejudice suffered by the Council as a result of the very late amendment of the application (Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 [99]).

Howard-Jones v Leichhardt Council

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Judgment (5 paragraphs)

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Cases Cited (3)