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[2011] NSWLEC 1313
Land and Environment Court (NSW)
2011-11-03
Original judgment source is linked above.
Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicant, by notice of motion, seeks leave to rely on amended plans in this Class 1 appeal against Kyogle Council's deemed refusal of a development proposal for 22 affordable house sites, community buildings and access roads at 1411 Afterlee Road Eden Creek. 2The original application was lodged with council on 12 October 2010. The application was advertised and later re-exhibited for administrative reasons. Notification letters were sent to adjoining properties. The exhibition period ended on 10 January 2011. Nine submissions and one petition were received. 3The council consulted with, and received responses from, the state government agencies of the Rural Fire Service, the Catchment Management Authority and the Department of Services, Technology and Administration. 4Kyogle council requested additional information from the applicant to be submitted at various times from October to December 2010. 5As the Development Application was not determined in the prescribed time, the applicant lodged the appeal with the Court on 6 January 2011. 6The Court's file notes show that the matter proceeded through a process of case management and directions were given for the service of relevant documents. An issue arose in March 2011 where a proposed access road through an adjacent wildlife reserve could not proceed. Council required a final bushfire management plan to assess. 7On 28 April 2011, Registrar Grey granted leave, via a notice of motion, for the applicant to amend the development application in accordance with supplementary bushfire information to the Bushfire Management Plan prepared on behalf of the applicant. The applicant was to pay the respondent's costs of the Notice of Motion. I note that the parties agreed that the amendments were minor. The plan is the consolidating plan dated 7 May 2011. 8This plan shows 3 precincts. Precinct 1 is along the narrow access handle and comprises 6 dwelling sites and a community building. Precinct 2 with 8 dwellings, and Precinct 3 to the south with 8 dwellings. The road network, dams and other facilities are identified. The notes on this plan indicate where the position of dwellings has been altered from the original plan in response to bushfire issues. 9During the progress of the matter, it appears that a number of modifications arose through expert reports. A summary table prepared by the council for this Notice of Motion hearing tracks the changes. 10A section 34 conciliation conference was held on 17 May 2011. The conciliation conference commenced with a site view and returned to Kyogle council chambers. As a result of discussions between the parties, the s 34 conciliation conference was adjourned until 16 August and a timeline set for the gathering of more information by the applicant and its assessment by the council. 11In response to matters arising from the conciliation process and discussions between the parties, the parties agreed to a modified plan but this was not formally put to the court via a Notice of Motion. This plan shows some changes in the location of the road network. Precinct 1 is reduced to 3 dwelling sites and a community building; precinct 2 retains 8 dwellings although in slightly different positions; precinct 3 is expanded to 11 dwellings at closer spacings. This is amended plan 22/08/11 and was the plan before the council and now before the court in the substantive proceedings in this appeal. 12On the 16 August, the s 34 conciliation conference was further adjourned until 26 August. On that date, it was determined that no agreement could be reached by the parties and, given the generous extension of time already allowed, the s 34 conciliation was terminated. 13On 5 September, the Acting Registrar set the hearing down for 12-13 October. The parties were directed to file an agreed timetable by 9 September which they did. Expert witness reports were prepared and joint conferencing occurred. 14On 10 October 2011, two days before the hearing, the applicant sent an urgent fax to the court requesting the hearing dates be vacated. The Acting Registrar advised the applicant that this should have been addressed via a Notice of Motion and supporting affidavit and that I was out of Sydney that day and therefore could not attend to the matter that day. The applicant's reasons for seeking the vacation of the hearing related to inadequate time for the completion of expert reports, and what he says, was advice from the council to their experts not to consider the applicant's reports on biodiversity and fire management. 15On 11 October there was a telephone mention with the parties. The council opposed the vacation on the basis that experts and advocates were prepared. The Court refused the request to vacate the dates given the extremely short notice and lack of process. 16During the discussions it became clear that the applicant's experts had prepared an alternative plan for the site. This, the applicant says, was in direct response to the council's amended statement of facts and contentions. In those amended contentions, the council considers that the issues relating to the bushfire assessment and safety reports as well as the native vegetation/ biodiversity assessment reports remained; and despite the additional information those matters still had not been addressed to council's satisfaction. The council indicated that the plans prepared by the applicant's experts (the alternative plans) were not the plans before the council or the Court and therefore could not be formally considered. I agreed with the council and indicated to the applicant that they were not formally agreed plans but could nonetheless be considered on site. 17The alternative plans show an extension of the access tracks around the perimeter, slight changes in the arterial roads and internal access tracks. Precinct 1 retains 3 dwellings but loses the community building; Precinct 2 shows 8 dwellings in different positions and a community building; Precinct 3 shows a revised alignment of the 11 dwellings and a community building. At the site inspection during the hearing, we viewed the locations of the dwellings according to the alternative plan rather than the plan before the Court. 18At the hearing, the applicant formally sought leave to amend the plans. While Mr Atkins for the council agreed that the proposal could be considered an improvement, the amendment was opposed by the council on the basis that council's experts had not had an adequate opportunity to assess the plans and this would prejudice their position. In addition, the usual process of a Notice of Motion had not sought the amendment. The Court agreed with the council and the request was refused. The applicant was given the option to proceed on the basis of the plans before the court (ie. as amended 28 April 2011) or to discontinue the proceedings and lodge a new application with the council. Given the fact that the applicant is self-represented and access to legal advice was not readily available to him, the hearing was adjourned. 19The plan dated 28/10/11 now before the court via a Notice of Motion shows the reduction in the number of dwellings from 22 to 16. Precinct 3 has been deleted from the application. Precinct 1 retains 3 dwellings and the area of precinct 2 has been expanded to accommodate 13 dwelling sites and a community building capable of providing refuge in a bushfire for 80 people. There appears to be a slight change to the road alignment.
Statutory provisions 20The motion falls for consideration under cl 55 of the Environmental Planning and Assessment Regulation 2000 (the Regulation). Exercise of the cl 55 power is available by virtue of s 39(2) of the Land and Environment Court Act 1979 (Court Act). Clause 55 of the Regulation states: (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. 21Section 39(2) of the Court Act states: 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. 22In Radray Constructions Pty Limited v Hornsby Shire Council [2006] NSWLEC 155, Jagot J at [6] makes it clear that the Court has no jurisdiction under cl 55 to consider an original application. 23Thus the process requires consideration of a number of jurisdictional matters. (1)Is it an amendment or is it a new application? (2)If it is an amendment should the court use its discretionary powers to allow it or not? (3)If the amendment is allowed it is minor or not minor and therefore are costs required to be ordered under s 97B of the Environmental Planning and Assessment Act 1979 (the Act)? 24Therefore the first question to be considered is the proposal an amendment or a new application? And then subsequently, does the Court have the power to grant the amendment? 25The applicant contends that this plan is an amendment and not a new application. He contends that the plan addresses the issues raised by the council, particularly by the bushfire experts, and, during the site inspection during the hearing, by the Court and others regarding precinct 3. He submits that whilst there are an additional 5 dwellings in precinct 2 and a community building, the location of most of the dwellings are close to areas already assessed by way of bore holes for waste water management. Similarly he says that assessments regarding biodiversity and asset protection zones have already been determined for 8 of the dwellings in the precinct and the additional dwellings will require some assessment but that won't be substantially different to what has already been undertaken by his experts. The roads are already on the ground and the plan now reflects their actual loaction and therefore there won't be any significant change in the access. 26The council contends that the removal of a precinct, the addition of 5 extra dwellings to precinct 2, the alteration of the location of the dwellings sites in precinct 2, the change in location of the community refuge and the necessarily different asset protection zones are significant changes that will require further assessment by council's experts and necessitate a further amended statement of facts and contentions. As a consequence of the changes, the council is of the opinion that this is a new application. 27In Radray , Jagot J considered a number of discretionary matters including the stage of the proceedings at which the amendment is sought, the agreement or otherwise by the applicant to protect council about further costs, the difficulty and history of the site and application, and in the specific case of Radray whether the changes were responsive to opinions of Court appointed experts. These discretionary matters can only be considered if the proposal is an amendment and not a new development. 28In this regard, Mr Atkin for the council contends that should I find the proposal is an amendment, the following discretionary matters are relevant. The amendments have been sought during the hearing and the matter has been before the council since October 2010 and the court since January 2011. I also note that there is no agreement as to covering council's costs and the site has a number of difficult physical constraints and issues to be considered, in particular bushfire safety and biodiversity. 29Talbot J in Pepperwood Ridge Pty Ltd v Newcastle City Council [2007] NSWLEC 19 considered that while the overall object of the proposal may remain the same, that in itself is insufficient to conclude that a development is an amendment rather than a new proposal. At [35] His Honour stated that he did not propose to undertake a quantitative assessment of the variations to determine whether they are substantial.
Findings. 30In this regard while the plans subject to this Notice of Motion may be seen by the applicant to be an amendment capable of addressing concerns raised by the council, in my view they amount to a new proposal. While there appears to be little change in the location of the 3 dwellings in precinct 1 or in the location of the roads, 6 additional structures have been added to precinct 2 and the locations of the dwellings have been altered. In my view this is a substantial change that requires a more thorough assessment. The addition of 5 extra dwellings requires further assessment not only of the bushfire safety issues in particular but the issue of wastewater management must also be considered. 31The applicant raised concerns during the hearing of the Court's role in not providing assistance to him and the obstructions he says have been put in his way by council. In his words, " It has been and remains my view from the date of submission of DA 11/39 that there was sufficient information provided for council to make an informed decision for conceptual conditional consent after which the additional information it continually sought could be provided without the risk of the very expensive costs of further professional reports being thrown away ". 32The applicant has elected to take the option available to him under the Environmental Planning and Assessment Act and appeal to the Court for a determination. As usual in these matters, a s 34 conciliation conference was the starting point as a means of reducing the differences between the parties. A liberal approach was taken in allowing the lengthy adjournments of the conciliation conference in an attempt to limit costs. However, as agreement could not be reached, the conciliation was terminated as required by the Court Act. 33While the Court has as its mission the just, quick and cheap disposal of matters, this does not supersede the Court's overriding obligation to consider all of the matters listed for consideration under s 79C of the Act. These include the statutory controls and the public interest. Matters such as bushfire safety and biodiversity are not matters capable of being dealt with at some later stage of a development appeal process. In this matter, those issues remain at the heart of the differences between the applicant and the council. In my opinion, the proposed plans create a new scenario that will require an overall re-assessment of the development particularly in respect of bushfire safety and impacts on biodiversity. 34Therefore I find that the proposal is a new development and as such I do not have the power under cl 55 of the EPA regulations to allow the amended plans. 35The onus in Class 1 matters falls squarely on the applicant to prove the proposed development satisfies the relevant statutory requirements whether he is self-represented or not. While the Court can assist parties in the resolution of an appeal, any assistance must be limited to procedural matters and not in the formulation of a party's case. 36My conclusion that there is no power under cl 55 to permit the applicant to rely on the amended plans means that the matter must proceed on the basis of the plans as agreed by the parties being the 220811 Consolidating Plan for 3/260848 - 1411 Afterlee Rd, Eden Ck. It is a matter for the applicant to consider whether he wishes to continue these proceedings on the basis of those plans. 37Therefore as a consequence of the forgoing: (1) The Notice of Motion heard on 3 November 2011 is dismissed. (2) The matter is listed before the Registrar for directions for the future conduct of the hearing at a telephone call-over at 11.50 am on 7 November 2011.
J Fakes Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 November 2011
Jonathon
Kyogle Council