Jaimee Pty Ltd v Council of the City of Sydney

HIS HONOUR: On 20 May 2010, Jaimee Pty Ltd (Jaimee) obtained development consent from the Council of the City of Sydney (the Council) relating to land known as 21 Collins Street, Alexandria. The development proposed, with an estimated development cost of $420,000, was for the alteration of, and internal additions to, an existing warehouse building. Those alterations and additions authorised the creation of "multiple new tenancies", the addition of a building naming sign and the creation of "shopfronts" to O'Riordan Street, Alexandria. Some 36 on-site parking spaces are required. The development consent was granted subject to a number of conditions. 2 On 18 June 2010, Jaimee submitted an application to the Council to modify the development consent. The application was submitted in reliance upon the provisions of s 96(1A) of the Environmental Planning and Assessment Act 1979 (the Act). It sought the deletion of two conditions as well as the amendment of a third condition. 3 Jaimee's modification application was determined by the Council on 26 August 2010. It acceded to the deletion of one of the three conditions, but refused the application in relation to the remaining two conditions. 4 On 27 August 2010, Jaimee appealed to this Court pursuant to s 96(6) of the Act. Its Class 1 application describes the basis for the appeal as being the Council's "deemed refusal" of its modification application. Apparently, at the time at which the application was filed, Jaimee had not received notification of the decision made the previous day in relation to its application. 5 By an amended notice of motion filed in Court on 19 November, Jaimee seeks leave to amend three documents. First it seeks to amend its application under s 96(1A). It also seeks to amend the Application Class 1 filed with the Court, together with the Statement of Facts and Contentions that it has already filed in the proceedings, as it was required to do in accordance with the Court's Practice Notes. 6 The Council opposes Jaimee's notice of motion. Having regard to the basis upon which the Council's opposition to the orders sought is argued, there are essentially three issues tendered for determination. They are - (i) whether there is power in a consent authority to accept an amendment to an application made to it pursuant to s 96(1A) of the Act; (ii) whether, assuming the existence of such power, it is one able to be exercised by the Court in the circumstances of this case, and (iii) whether that power should be exercised in this case. 7 Before turning to address these issues, it is necessary briefly to state the facts against which those issues must be determined. They are not controversial. Background 8 The development consent granted on 20 May 2010 contained some 56 conditions. The three conditions that are the subject of the s 96 application are conditions numbered 7, 8 and 26. For the purpose of considering the present notice of motion, the precise terms in which the three conditions are framed need not be recited. 9 Condition 7 requires payment of the sum of $19,375.55 as a monetary contribution towards the provision of affordable housing in the Green Square precinct. The legal foundation for payment of this contribution is cl 27P of South Sydney Local Environmental Plan 1998. 10 Condition 8 is a condition imposed in accordance with the City of Sydney Section 94C Contributions Development Contributions Plan 2006. The total amount required to be paid in accordance with this condition is the sum of $261,192.17, being the aggregate of various contribution components identified in the condition. Jaimee contends that there are errors in a multiplier used for the purpose of calculation, with the consequence that the amount sought is unreasonable. It seeks to have Condition 8 amended so as to reduce the contribution payable. 11 Condition 26 requires that neither demolition nor excavation be undertaken on the site "until a Construction Certificate has been issued." Jaimee sought the deletion of this condition, at least as framed, because there was no legal requirement for a construction certificate to be obtained for excavation or demolition work. 12 As I have earlier indicated, although Jaimee's appeal was founded upon the failure of the Council to have determined its application within 40 days after it was made (s 96(6)), the Council did, in fact, determine the application on 26 August 2010. It refused to delete Condition 7 and also refused to amend Condition 8. However, it did accede to the application to the extent to which it agreed to the deletion of Condition 26. 13 The orders sought in the Class 1 application, as originally filed, were that the appeal be upheld and that the s 96 application in relation to the subject property be approved. In accordance with the Court's practice requirements, the filing of the Class 1 application was followed by a Statement of Facts and Contentions prepared on behalf of Jaimee. That document identified each of the three conditions that were the subject of its application to the Council and stated briefly the basis upon which it sought to have the conditions either deleted or amended, as the case may be. 14 The Council responded by filing a detailed Statement of Facts and Contentions in reply. The focus of that document was upon Conditions 7 and 8, given the acceptance by the decision of the Council itself that Condition 26 should be deleted. The effect of the Council's position, as is apparent from its Statement, is that in calculating payment for the purpose of both Conditions 7 and 8, it had miscalculated the floor area of the development to which it had granted development consent. The consequence of this error on its part was that the correct figure to be imposed in accordance with Condition 7 ought to have been $261,192.17 in lieu of $19,375.55, as the condition presently requires. In the case of Condition 8, it contends that the correct sum for s 94 contributions should be $386,926.50 in lieu of the sum of $261,192.17 nominated in the condition. Proposed amendments 15 The amendment sought to be made to the s 96 application is to remove from that application the proposed deletion of Condition 7; that is, Jaimee accepts that Condition 7 as imposed by the Council should remain a condition of the consent. Although it bears little upon the ultimate result, the evidence filed in support of the notice of motion for amendment indicates that Jaimee no longer seeks deletion of the condition as the cost of litigating the issues pertaining to it, as identified in the Council's Statement of Facts and Contentions, would far exceed the contribution of $19,375.55 required to be paid in accordance with the condition. 16 The amendment of Condition 8 and deletion of Condition 26 remain as the two modifications sought in the proposed amended s 96 application. In light of the Council's acceptance that Condition 26 should be deleted, the only contentious aspect of the application, so far as Jaimee is concerned, remains Condition 8. It may be thought that the reduction in the number of modifications sought by Jaimee would be attractive to the Council. As it happens, that is not the case. The amendments that Jaimee seeks to both the Class 1 application and the Statement of Facts and Contentions filed on behalf of Jaimee are really consequential upon the amendment that it seeks to make to its s 96 application. Amendment to the Statement of Facts and Contentions is not opposed by the Council but amendment to the Class 1 application is opposed. 17 The legal basis upon which opposition to amendment of both the s 96 application itself and the Class 1 application will be considered shortly in the context of the three issues that I have earlier identified. However, at a practical level, the Council indicates that if the applications are amended in the manner proposed, it may be denied the opportunity to argue the quantum error contained in Condition 7 which, in turn, will prevent it arguing that as a condition of granting the modification, a higher impost for affordable housing should be imposed. How such an outcome might reasonably have been anticipated was not made clear, but Mr C W McEwen SC, who appeared for Jaimee, seemed to accept, at least in principle, that such an outcome was possible. 18 It was accepted by Mr C D Norton, who appeared for the Council, that the practical result that Jaimee now seeks to achieve is possible without engaging consideration of Condition 7. That result could be achieved by Jaimee discontinuing the present proceedings in the Court and making a further modification application to the Council, seeking amendment of Condition 8 only. Mr Norton accepts that if this course is taken and the Council, as might be expected, refuses to modify Condition 8, in a further appeal to this Council pursuant to s 96(6), an argument founded upon the erroneous calculation in Condition 7 will not be available. 19 I recite these matters because the only substantive issue between the parties is whether Condition 8 should be amended. The opposition of the Council to the amendment seeking to limit the ultimate hearing to that single issue, on the basis that by successfully opposing the motion it may secure to itself the opportunity to rectify its own "mistake" which could not otherwise be rectified, is hardly an approach consistent with facilitation of the just, quick and cheap disposal of the proceedings (cf s 56 Civil Procedure Act 2005). Nevertheless, application of the general principles of case management and interlocutory applications cannot confer power to amend proceedings where, as the Council submits in the present case, this Court has no power to accede to the amendment sought. It is therefore necessary to turn to the issues earlier identified. Power to amend a modification application 20 The Council submits that there is no power in a consent authority to allow an application made under s 96 of the Act to be amended. It says that there is no provision in either the Act or the Environmental Planning and Assessment Regulation 2000 (the Regulation), which expressly or impliedly authorises Jaimee to make, or the Council to accept, such an amendment. 21 Mr Norton, on behalf of the Council, supports his submission by contrasting the provisions of Pt 6, Division 1 of the Regulation relating to development applications, with the provisions of Division 12 of the same Part of the Regulation relating to applications made under s 96 of the Act. That comparison is made having regard to the fact that the provisions of the Act do not, themselves, address amendments to either form of application. 22 Clause 55 of the Regulation, contained in Division 1 of Pt 6, relevantly provides as follows - " 55 What is the procedure for amending a development application? (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. (3) If the development application is for: (a) development for which concurrence is required, as referred to in section 79B of the Act, or (b) integrated development, the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body." 23 There is no comparable provision found in Division 12. It is this circumstance upon which the Council relies. It submits that had it been the intent of the Regulation to allow amendment of a s 96 application, one would expect to find a provision comparable to cl 55 in that part of the Regulation, specifically directed to applications for modification of a development consent. In essence, it seeks to apply the expressio unius principle of statutory construction in order to sustain its submission. 24 The scope of the power available under cl 55 of the Regulation has been the subject of judicial consideration. It has been described as a provision that is "beneficial and facultative" in nature and for that reason afforded "the widest interpretation which its language will permit" (Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155; (2006) 145 LGERA 292 at [9]). 25 The description of cl 55 as being "beneficial and facultative" was embraced by Talbot J in Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 where his Honour indicated that the provision was intended to facilitate the making of amendments on two counts which he identified as follows (at [40]): "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." 26 Mr Norton emphasises the jurisprudence developed in respect of cl 55 in order to contrast its provisions with the absence of any express power, even with limitation, to amend an application for modification of a consent under s 96(6). Undoubtedly, these are factors requiring close consideration. However attractive arguments of this kind may be, authority identifies the caution with which an argument effectively founded upon the expressio unius rule is to be applied. It is a rule that has been described as "a valuable servant, but a dangerous master" (see, for example, Houssein v Under Secretary of Industrial Relations and Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88 at 94). Ultimately, it is necessary to construe the legislative scheme in order to determine whether such a consequence is intended, informed by the context, scope and purpose of the legislation. 27 For present purposes, the legislative context relevantly commences with subsection (1A) of s 96. It will be remembered that it was in accordance with that particular subsection that Jaimee lodged its application with the Council. That subsection relevantly provides as follows: " (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all) and (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be." 28 Paragraphs (c) and (d) assume importance for present purposes. It seems hardly consistent with the sensible application of provisions that required the consent authority to notify an application for modification and to consider submissions received as a result of notification yet be unable to seek meaningful response from an applicant. That meaningful response may require no more than amendment to address a concern without altering the substance of the modification sought. Even without the requirement for public notification, extraordinary administrative rigidity would be imposed if, upon examination of an application for modification, some apparent error or omission was discovered that was easily rectifiable but, nonetheless could not be rectified by amendment, necessitating the lodgement of an entirely new application. Unless the interpretation of the Act and Regulation, mandates such a result, I do not believe that it should be so interpreted. 29 Although addressing different legislation, the power to amend an application for development approval, where there was no express statutory provision authorising such amendment, was the subject of consideration by the Full Court of the Supreme Court of South Australia in Independent Holdings Ltd v City of Adelaide Planning Commission (1994) 63 SASR 318; (1995) 85 LGERA 339. In discussing that aspect of the case, King CJ wrote (at 346): "In the absence of an express provision authorising amendment, it is necessary to consider whether there is any implied authority to amend or permit amendment. … There is no provision of the Act which forbids such a course. There are no third party rights under the Act which could be adversely affected. It is manifestly convenient that such a power should exist. It is almost inevitable that when proposals for complex developments are examined by the planning authority's experts, some need for modification of plans will arise. It would be absurd to require a developer to lodge a new application notwithstanding that the desired modification might be of minor significance. I see no reason to interpret the Act in so rigid a manner." 30 The Chief Justice's observations are in my respectful opinion apposite to the present case. To the extent that there are any "third party rights" potentially affected, they are addressed both by paragraphs (c) and (d) of s 96(1A) together with cl 117 of the Regulation. There is no reason to think that if an amendment was made that the consent authority could not undertake the notification process that these provisions require. Moreover, the nature of any amendment is constrained by the jurisdictional requirements of paragraphs (a) and (b) of s 96(1A). 31 In Mirvac Projects Pty Ltd v Ku-ring-gai Council [2007] NSWLEC 540; (2007) 159 LGERA 151 Talbot J was required to consider whether an application for modification of a development consent could be amended. He determined that it could. The contrast with cl 55 of the Regulation was raised before his Honour, apparently as a basis for asserting that an application under s 96 could not be amended. His Honour addressed the argument in the following way (at [29]): "Clause 55 is a constraint on amendment to a development application without leave in the circumstances therein described. I agree with the applicant's submission that in the absence of a similar constraint on the amendment of a s 96 application, it can be accepted that an applicant is allowed to amend. Moreover, a power to apply must ordinarily include a power to amend. Furthermore following departure from what was decided in Benalup, the Court can exercise a discretion to grant an approval in a different form to the application as a condition of consent." 32 No authority was cited by his Honour for the conclusion there expressed. Mr Norton submits that the absence of any authority for the proposition stated, coupled with his Honour's description of cl 55 as being "a constraint", renders the conclusion one that is inappropriate to be followed. I do not agree. 33 Although the determination by Talbot J, that a power to make an application would "ordinarily" include a power to amend is criticised by Mr Norton, no authority is cited against the proposition, at least as it reflects upon the power of a council to accept an amendment prior to determination. I believe there is support for his Honour's statement to be found, by analogy, in the observations of Mason P (Sheppard AJA agreeing) in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468. In that case, the court was considering the power of this Court to allow a development consent to be modified in accordance with s 102 of the Act, in the form that it then took. Section 102 of the Act, as it then stood, was effectively the same as s 96 of the Act as it presently stands. Although the section numbering in the present form of the Act differs from that which pertained in 1998, like the Act in its present form, it expressly provided for the imposition of conditions upon the grant of development consent and identified the various bases upon which conditions could be imposed. 34 One of the matters discussed in the judgments in Michael Standley was the power of a consent authority to grant a conditional consent when determining an application to modify a development consent. Decisions of this Court to that point in time had considered that there was no such power. In expressing doubt as to the correctness of those decisions, Mason P said (at 475-476): "I would wish to reserve the point whether as a general principle the power to approve conditionally needs to be conferred expressly where there is a true discretion". In Southern Pacific Co v Olympian Dredging Co 260 US 205 (1922) at 208 Sutherland J, delivering the opinion of the Supreme Court of the United States, said that: 'The power to approve implies the power to disapprove and the power to disapprove necessarily includes the lesser power to condition an approval'; see also Johns v Australian Securities Commission (1993) 178 CLR 408 at 428-429, 469-470; cf R v Windsor Licensing Justices; Ex parte Hodes [1983] 1 WLR 685; [1983] 2 All ER 551. It is true that s 102 does not contain a provision similar to that found elsewhere which expressly arms the Court with power to approve conditionally: see, eg, ss 79(1), 91(1), 92(4) and 101(8). However, given the dangers of applying the expressio unius maxim, this may be insufficient to displace any general principle concerning the conditional exercise of discretionary powers."

35 Those observations of the President were taken up by McClellan J, when Chief Judge of this Court, in 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685. For reasons then given by his Honour, he decided that an application under s 96 of the Act could be determined by the grant of a conditional consent or approval, notwithstanding the absence of any specific power in the Act or Regulation so to do and not withstanding the provisions of the Act expressly providing for conditions to be imposed upon the grant of development consent: see for example, ss 80 and 80A. The correctness of the decision in 1643 Pittwater Road has not since been questioned in this Court. 36 There are two passages in the judgment in Johns v Australian Securities Commission [1993] HCA 56 (1993) 178 CLR 408 that are relevant for present purposes. The conventional position that pertains when a discretion to exercise authority is given by statute was expressed by Brennan J as follows (at 428-429): "An authority conferred by statute is construed as authorising everything which can fairly be regarded as incidental to or consequential upon the authority itself." 37 The second passage of present relevance from Johns v Australian Securities Commission is from the judgment of McHugh J where his Honour said (at 469-470): "The scope of a statutory power is ascertained 'by the character of the statute and the nature of the provisions it contains' [citation omitted]. When the exercise of a power is left to the discretion of some person, the scope for implementing the power is fettered only by the necessity to maintain consistency with the purpose or purposes of the legislation." 38 Given the discretion that a consent authority has, when determining an application made to it in accordance with s 96 of the Act, I would have thought that the power to determine the application extends to allowing that application to be amended prior to determination. Provided the amendment sought does not convert the original application into a new application, I do not perceive that allowing an amendment would be inconsistent with the purpose of the Act as it addresses the modification of development consent. 39 Furthermore, I do not perceive the inconsistency identified by the Council between the observations made by Talbot J at [29] of his judgment in Mirvac Projects Pty Ltd v Ku-ring-gai Council and the observations made in other cases as to the beneficial and facultative effect of cl 55 of the Regulation. Read, in context, I think his Honour was doing no more than identifying the requirement of cl 55 that the agreement of the consent authority was required to any amendment. In that sense, the requirement for agreement was a constraint. In the absence of such an expressed constraint, an applicant would be entitled to amend provided always that the amendment did not effect change so as to transform that which was originally proposed into a new application. By contrast, the discussion of principle whereby the power is described as "beneficial and facultative" informs the ambit of permissible amendment to which agreement can lawfully be given. 40 However, even if I be wrong in rationalising the observations of Talbot J in Mirvac Projects Pty Ltd v Ku-ring-gai Council, so far as they relate to cl 55, that rationalisation does not impinge upon his Honour's observation that a power to apply would ordinarily include a power to amend. For the reasons that I have indicated, I am of the opinion that this is a correct statement of principle as it applies to the amendment of an application made to modify consent pursuant to s 96 of the Act. In short, I conclude that it was open to Jaimee to amend the application that it lodged with the Council. Power of the Court to allow amendment 41 Having determined that it was open to Jaimee to amend its s 96 application, as lodged with the Council, it is next necessary to determine whether the Court can allow such amendment, with consequential amendment to the Class 1 application. Consideration of this issue also involves consideration of the nature of the amendments sought so as to determine whether the change brought about by the amendment converts the present s 96 application into a new or original application. 42 The powers of the Court in respect of an appeal brought within Class 1 of its jurisdiction include those identified in s 39(2) of the Land and Environment Court Act 1979 (the Court Act). Subsection (2) of s 39 provides as follows: (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal." 43 The provisions of s 39(2) have been the subject of consideration in a number of cases. It is unnecessary to recite all of them. None, in my assessment, diminish the observations of Kirby P (as his Honour then was) in McDougall v Warringah Shire Council (1993) 30 NSWLR 258 where his Honour said (at 264): "My impression of s 39(2) by its language and apparent purpose in the scheme of the Act is that it was intended that the Land and Environment Court be placed fully in the shoes of a council at the time an application is lodged. This impression derives, in part, from the use of the past tense in the word "had", and the fact that s 39(3) of the Land and Environment Court Act directs that an appeal to the Land and Environment Court shall be by way of 'rehearing'. The result of this interpretation is that all the functions and discretions the council could have exercised when considering the application are open to the Land and Environment Court on appeal and not only those strictly necessary to the approval." 44 I have already determined that incidental to the function of determining an application made to it under s 96 of the Act, the Council had power to accept an amendment made by Jaimee to its application. Given the existence of that power on the part of the Council when exercising its function, s 39(2) would seem to provide amply for the power of the Court to accept an amendment made to the s 96 application. That application was for modification of three conditions attaching to the development consent; the amendment proposed is to delete from the application one of the conditions sought to be modified. 45 As I understand the Council's submission, it accepts that if, contrary to its primary submission, it was open to Jaimee to amend its s 96 application prior to determination by the Council, then by force of s 39(2) of the Court Act, it was open to the Court to accept an amendment of the application. So much must follow from the citation by the Council of the decision of Bignold J in Ervin Mahrer v Strathfield Council (No. 2) [2001] NSWLEC 140; (2001) 115 LGERA 259. There, Bignold J discussed the power of the Court to allow amendment to a development application by applying cl 55 of the Regulation. 46 For reasons already identified, the Council submits that as there is no power analogous to cl 55 of the Regulation pertaining to amendment of an application made under s 96 of the Act, s 39(2) of the Court Act cannot itself be the source of such a power. I have already determined that Jaimee's application was capable of lawful amendment independently of s 39(2). By parity of reasoning, it is therefore open to the Court to allow an amendment to be made to the application in reliance upon s 39(2). 47 Mr C W McEwen SC, on behalf of Jaimee, submitted that s 68 of the Court Act was also a source of power upon which reliance could be placed to allow the amendments sought. For its part, the Council submitted that the section provided no foundation for the amendments sought, having regard both to the terms of the section itself and its rejection as a source of power to amend a development application by Bignold J in Ervin Mahrer v Strathfield Council (at [54]). Given my determination that an amendment is open to be made and accepted independently of s 68, it is unnecessary that I express a concluded view as to the ambit of the power available under s 68. However, a question related to that power, as well as the power available to allow an amendment of the original application in the course of an appeal under s 96(6), is required to be acknowledged. 48 It can be accepted, as the Council contends, that it is not open to the Court to entertain what is tantamount to a new application. It is the determination, actual or deemed, by the consent authority, of the application made by an applicant that founds the jurisdiction of the Court to entertain an appeal, in this case under s 96(6) of the Act. The Council contends that by amending the s 96 application so as to remove Condition 7 from consideration, the application is so changed that it cannot be considered to be the application considered by the Council and therefore is not an application in respect of which an appeal could be brought under s 96(6). 49 I do not agree. The application for modification made to the Council by Jaimee related to three disparate conditions. The fact that two of those conditions determine the quantum of contributions to be made does not deny their description as being disparate. Each of them was dependant upon a different source of power; in the case of Condition 7 it was cl 27P of South Sydney Local Environmental Plan 1998, while in the case of Condition 8 it was s 94 of the Act. 50 Amendment of the application by removing one of the conditions originally sought to be deleted, thereby maintaining the status quo in respect of that condition, cannot, in my opinion, be seen to be formulating a new application. Such an approach accords with the principle summarised by Bignold J in Ervin Mahrer v Strathfield Council where his Honour said (at [78]): "The principle deduced or derived from the decision in Manchil and which has been consistently and often applied by this Court, I think can be aptly formulated as follows: 'Whereas a planning appellate body has no jurisdiction to entertain an original development application, it may in determining an appeal, exercise the power vested in the consent authority to allow an amendment to be made to the development application (that was the subject of that authority's determination and which enlivened the appeal) provided that the amendment does not convert the original concept into something substantially different.'"

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