Kanivah Holdings Pty Limited v Burwood Council

CASES CITED: Willoughby Municipal Council v Manchil Pty Limited (1974) 29 LGRA 303.

APPLICANT Mr P R Clay (Barrister) SOLICITORS Emerys Law Firm LEGAL REPRESENTATIVES:

RESPONDENT M/s S E Pritchard (Barrister) SOLICITORS Lindsay Taylor Lawyers

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11238 of 2004 Kanivah Holdings Pty Limited v Burwood Council

JUDGMENT 1 Talbot J: Before the Court today is an application by Kanivah Holdings Pty Limited ("the applicant") for leave to rely upon amended plans in respect of a proposed mixed use development located at 1 Railway Parade, Burwood. The original development application was lodged with Burwood Council ("the respondent") in July 2004.

2 Proceedings were commenced by the filing of a class one application on 11 October 2004. During the period since the lodgement of the application and probably prior to that, there have been a series of meetings between representatives of the applicant and representatives of the Council. It is common ground that no consensus in relation to the development as a whole has been reached so that issues in relation to whether or not the development application should be approved are generally at large. 3 The site is a prominent site. I am informed that there is a master plan that is about to be introduced or has recently been introduced by the Council. The site is encompassed within the area the subject of the master plan, or at least is relevant to it. It is self evident that the site is important. That can be gauged solely from its location adjacent to Burwood Road and Burwood Railway Station in the heart of the commercial area of Burwood. A cursory perusal of the plans shows that it is an extensive development. Originally it was designed with 153 proposed residential units with commercial uses at the lower podium levels and basement parking below for 330 vehicles.

4 The existing plans contemplate there will be accommodation for 303 people. The amended proposal contemplates there will be sufficient accommodation to house 367 people, with 280 car spaces. 5 The abovementioned meetings continued through to March this year. In the meantime a hearing date had been appointed and vacated. On 24 March the applicant foreshadowed amendments to the plans. A communication was made through email providing the Council with a copy of some proposed plans. It was not until yesterday that the Council was provided with a full set of plans in A1 form.

6 Mr Clay submits that the changes proposed and identified by the Council's Manager, Building and Development in an affidavit are such that the new proposal can be regarded as being effectively a proposal of the same character and nature with similar aspects sufficient to justify the matter proceeding on the basis of the plans now presented as an amendment to the original plans.

7 The Council's Manager, Building and Development, Brian Charles Olsen, conveniently provides a comparison between the current plans and the proposed amended plans as follows:-

1. a distinct and new external architectural style and design with unspecified finishes;
2. distinct and new associated impacts on the urban environment relating to building form and design;
3. new floor plates, basement carparking, amenities and common area with as yet unassessed amenity impacts for future residents;
4. distinct altered intensity and layout of the commercial/residential components of vehicular access and a new treatment of the proposed eastern open space. 8 There has been a range of approaches adopted by the Court in seeking to determine whether or not plans are in truth an amendment to existing plans going right back to the case of Willoughby Municipal Council v Manchil Pty Limited (1974) 29 LGRA 303. 9 Clause 55 of the Environmental Planning and Assessment Regulation 2000 ("the EP&A Regulation") sets out the procedure for amending a development application. It gives a clear power to a consent authority to accept amendments or variations by an applicant for development consent at any time before the application is determined. Essentially the development application may be varied or amended only with the consent or agreement of the consent authority. That power is carried through to the Court where there is an appeal. The Court can exercise that same discretion by granting leave to allow an applicant to rely on amended plans.

10 Clause 55(2) of the EP&A Regulation is important and I should quote it in its entirety:- 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.

11 Taking a very broad view, arguably the applicant may have provided written particulars by submitting the plans. There is a comparison to the pre-existing design outline shown on the amended plans. Presumably one might say therefore that the plans themselves could be regarded as written particulars sufficient to indicate the nature of the changed development.

12 There would be cases where an amendment or variation to a proposed development does not involve a change to the plans. Something else could be changed such as the nature of the use, in which case specific written particulars may be more apposite. However, no separate set of written particulars has been provided. Miss Pritchard representing the Council refers back to clause 50 of the EP&A Regulation. That clause sets out in its own terms and by incorporation of what appears in the Schedule to the Regulation the material that is to accompany a development application.

13 It is common ground that the material specified by clause 50 was essentially provided in support of the original development application. That is not the case in respect of the amended plans. One of the issues is whether a development, as amended, can be accepted for the purposes of clause 55 as being the same development solely on the basis that in general terms one might describe the subject application before and after the amendments as the same overall concept. In this case a mixed residential commercial building with three towers over a podium level with basement parking below. Alternatively, does one have to look at the development, as amended, more closely in terms of its detail in order to ascertain whether there are essential elements in the context of an assessment under the Environmental Planning and Assessment Act that are different and therefore place the development in a different category for the purposes of consideration? 14 Mr Clay contends that in this case the use remains constant. Even if that is right Miss Pritchard says that is a low threshold that, in itself, could not get the applicant over the line. She makes the same observation in response to Mr Clay's suggestion that the towers are located basically in the same place. In a broad and general sense that might be right. However, as I indicated, the residential accommodation to be provided is significantly different and the mix of residential units is changed in a material and major way. The accommodation for cars in the basement is materially altered.

15 It is apparent from the plans, even with the limited capacity the Court has in its own right to assess these matters, that the architectural treatment is sufficiently different to require a reassessment of that aspect of the development pursuant to State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development ("SEPP 65"). Moreover the difference in the maximum height of the buildings is some nine metres. Mr Clay submits that in context that is not a material change. It is difficult for the Court to form a concluded view about that except to note that the present development application contemplates a height of 46.3 metres, whereas the proposal as amended would be 55.3 metres high, a change in the order of twenty per cent. 16 As I have said the number of units and mix of units is different and the number of vehicles to be accommodated is different. 17 It is those four essential elements that the Council says justifies starting again. It is unfortunate that the Court does not have some greater assistance other than the assessment made by Mr Olsen on the one hand and its own assessment assisted by Mr Clay's submissions on the other. The plans are complex and detailed. A cursory view could be, as Mr Clay submits, that when the detail is more closely examined the Council's case is significantly advanced.

18 I am conscious of the current active participation of the Court in the development of the resolution process with the object of achieving acceptable outcomes for the parties and the community. Nevertheless on balance, doing the best that I can in the circumstances, I am inclined to the view that the Council's view should be preferred. Even if I am wrong to accept that view, the absence of the supporting material specified by clause 55, but more importantly the revised material demanded by clause 50 persuades me that in the exercise of my discretion I should not, in the particular circumstances of this case, allow the amendment to proceed at this stage. There are so many unknowns and uncertainties that in my view it would not be reasonable to allow the application to proceed on the basis of the amended plans in the absence of that information. I accept that information can be made available.

19 However, I am not in the circumstances persuaded to adopt the inference that Mr Clay would have me make that the plans are necessarily a reflection of the process of consideration in the without prejudice discussions that have taken place since the original application was lodged. 20 When it was suggested to Mr Olsen during his oral evidence that his understanding was that the applicant had lodged the amended plans seeking to address the issues raised by the Council, he expressed surprise at such a suggestion and responded that it was the first time he had heard of such a proposition.

21 Mr Clay says nevertheless that if the circumstances had been different (in the sense that the applicant and the Council had been able to reach a consensus about the way ahead) the present development application would have been amended and processes would have been devised on a co-operative basis between the parties to enable the matter to proceed to a hearing so that the true issues between the parties could be ventilated. 22 I am concerned that the conclusion that I am about to reach may be seen as contrary to the stated objectives and policies of the Court to provide a facility for achieving an effective, efficient and acceptable result. Mr Clay has put to me that if the development application is kept on foot then the Court will be able to maintain a watching brief over the evolving process as the amended plans are referred, considered and reported on.

23 I am not satisfied that is a factor which balances in favour of the applicant. In terms of time, I am not persuaded that the applicant will be in a substantially different position if it lodged the amended plans with the Council in support of a new development application. In my view, having regard to the complexities of the situation in terms of time there would not be a significantly different timetable for reaching a final conclusion.

24 I have deliberately not made a final and complete binding determination that the plans as now submitted could not be regarded as an amendment. I have made it clear however that on the basis of the material before me it is clearly open for the plans to be regarded as a new set of plans for the reasons that I outlined. On balance, I am finding at this stage on the material before me that leave should not be granted to rely on the plans as an amendment. As I have said nevertheless even if they were, as things stand today, I would not exercise the Court's discretion and grant leave.

25 Mr Clay has indicated that in those circumstances there will be a prospect that the original plans could be relied upon or some other action may be taken and accordingly I do not anticipate that it is appropriate for the application to be dismissed as a consequence of dismissing the notice of motion. 26 Let me foreshadow a view that I might put to the parties in relation to any question of costs. These are, after all, class one proceedings. I recognise the process that has taken place as being one that is integral to an evolving process of attempting to find a suitable solution for this site. It is clear that there has been a process of negotiation and joint consideration by a series of without prejudice conferences and no doubt in other ways. I do not criticise the applicant per se for seeking to amend the proposal or to change it in its entirety if indeed that course is generated by an attempt to meet what it perceives to be at least some of the problems the Council currently has with the development. This is not a situation where the applicant has necessarily acted irresponsibly and without regard to due process. I say that notwithstanding what Miss Pritchard put to me about delay. This included the fact that the proceedings have been on foot for as long as they have, one hearing date has already been vacated, that the plans were submitted in a way that at the first instance on 24 March did not assist the Council to readily assess the situation and that the plans in their final form were not made available until yesterday. I also appreciate that the material that is required to accompany the plans pursuant to the combined effect of clauses 55 and 50 was not forthcoming.

27 However, if indeed I am right that the attempt to change the proposal is part of the evolving process, then it may be arguable that in the circumstances the effort to date has not been wasted.

28 I appreciate that the Council would be seeking an order that effectively its costs and expenses, wasted, thrown away and lost would be the subject of an order (essentially by consent) if the Court had decided to grant leave. In that sense, if no order is now made the Council may have lost the opportunity to recoup those expenses.

29 Having expressed those views and without deciding and without knowing the course that the matter takes from here on the preferable course may be to simply reserve costs unless somebody seeks to persuade me to the contrary this afternoon. Unless of course, by consent, there would be no order as to costs.

30 The difficulty that I might say that I have in my mind Miss Pritchard is that I do not know that I can make the order that Mr Clay was prepared to consent to as a costs order. 31 PRITCHARD: If I might be heard, in the circumstances it would seem most appropriate that a question of costs of today and costs thrown away to be reserved.

33 HIS HONOUR: The notice of motion is dismissed. Exhibits may be returned with the exception of exhibits C, 3 and 4. Costs of the motion reserved.

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.