Khouri v Burwood Council and Anor

The applicant seeks to rely on the amended plans. Shortly described, the development is now in the form of two buildings or towers above a podium level. There is one level of commercial use. The buildings are respectively, in the west, 8 storeys, being 7 residential levels over one level of commercial use and in the east, 9 levels, being 8 residential levels over one level of commercial use. The parking is now below ground level over three levels below the single commercial level. The provision for parking is now 154 vehicles. This contrasts to the 209 provided in the earlier plans.

Apart from the changes in the number of levels of parking, the access ramp is now circular and located at the western extremity. The entrance to the carpark is, for all intents and purposes, at the same location at the western end of the building at ground level.

The original building provided for a total of 78 dwellings comprising 15 three bedroom, and 63 two bedroom units, as I have said over 7 levels. Whereas the amended plans provide 70 residential units, being 10 two bedroom, 10 three bedroom, and 2 four bedroom units in the western building or wing. There are 16 two bedroom, and 32 three bedroom units in the eastern wing.

Following a consideration of the amended plans, the Director of Urban Design Advisory Service advised the Deputy Manager of the department that she was "... endorsing this current set of drawings for the above development as being an appropriate architectural solution for the site".

The applicant now seeks the leave of the Court to file and rely upon the amended plans at the hearing of the appeal. Neither of the respondents opposed the granting of leave to rely on the amended plans if the Court is satisfied that the plans are indeed amended plans rather than a set of plans which describe and illustrate a new development. That is a development which is distinct from the development which was originally the subject of the plans lodged with the council in February 2000.

The question of whether the applicant should be given leave to rely on the amended plans does not arise unless the Court is satisfied that the development is essentially the same development. Following the recent amendment to the Land and Environment Court Rules 1996 Pt 13, r 16, an applicant cannot now rely on amended plans without the leave of the Court, unless the consent authority agrees.

It is essential to the applicant's application for leave that the plans be regarded as amendments. Mr Sahade has put forward an argument which asks the Court to take into account the process which has been undertaken between the representatives of his client the applicant and the representatives of the second respondent, as being a critical factor in determining whether or not the plans should be regarded as an amendment. If they are not, he says his client will be prejudiced notwithstanding that they have entered into a process that has resulted in an outcome which is perceived to achieve a better result than that which prevailed under the original plans.

On the other hand, the respondents rely on the more general principle flowing out of the decided cases in this Court extending back as far as Willoughby Municipal Council v Manchil Pty Limited (1974) 29 LGRA 303, and Parkes Developments Pty Limited v Cambridge Credit Corporation & Anor (1974) 33 LGRA 196.

Under the original principles developed by Samuels J in Manchil , and by the Court of Appeal in Parkes , the emphasis was seen to be one associated with whether or not the interests of persons who may have objected to the original plans were properly taken into account.

As I observed in Andari-Diakanastasi v Rockdale Council [2000] NSWLEC 250, unreported, this is one of the matters to be taken into account. However, the test (apart from the reaction that might come from a reasonably minded objector who had already objected, or could have otherwise objected) has been refined and accepted consistently by this Court to be a consideration of whether the changes made are so substantial that the application must be regarded as a new application.

The procedures under the EP&A Act and the application thereof, through the implementation of policies of disclosure, exhibition, and consideration of objections, has largely catered for the interests of objectors who may be inclined to disagree with development proposals for whatever reason.

Nevertheless, it is interesting in the present case to note that what was called in by the Minister pursuant to s 88A of the EP&A Act was the specific development application. The Minister has not called in all development applications relating to the subject site. Nor has he called in development applications of a particular category for this site, nor indeed development applications of a particular character generally, or even in a particular locality. The Minister has called in the development application made to Burwood Council in February 2000. Accordingly, if the Court forms the view that the plans are so different from the plans that were originally lodged they, in effect, comprise a separate, distinct and new application then there are ramifications for the direction made by the Minister pursuant to s 88A of the EP&A Act.

In order for the direction to continue it is essential that any plans (irrespective of what compromise may have been reached between any of the parties or their representatives) must be such that they can be regarded as being in respect of the same development.

The Court has been given the opportunity to go through the plans and has had them explained. Mr Graham, on behalf of the council, undertook that responsibility. Mr Green agreed on behalf of the Minister that the matters he raised were the relevant points of difference.

Mr Sahade did not take issue with the description of the plans and indeed it would not seem that he was really in a position to do so as a matter of fact. On a comparison of the plans the differences identified by Mr Graham were self evidently correct.

The question therefore becomes whether or not the differences are such to justify a conclusion that what is now proposed is a new and separate application to the original proposal in the plans that accompanied the February application.

It is not an appropriate test to merely have regard to the nature of the use of the proposed building. The building in all its elements, and in particular those external elements which are likely to have some effect or impact outside the site (in terms of traffic, pedestrian use, numbers of residents, and the like) and those internal elements which have some bearing on amenity for the occupants must be considered. For example, it is not simply enough to say, this is a residential building, the lower levels are to be given over to commercial uses, the upper levels will be used for residential purposes, and therefore it is essentially the same development.

It is perhaps worthy to comment, as Mr Sahade did, that we have the curious situation where an apparent arm of the Minister's own department thinks that the plans will be more beneficial, and that the applicant has entered into discussion and negotiation in good faith to that end.

On the other hand, of course, a careful consideration of the words in the correspondence addressed to the department shows that the issues that appear to have been addressed in that consideration do not go to the present question. It could be that the same architectural conclusion could have been reached if the whole building had been given over to a different use altogether such as a wholly commercial use.

The fact that the building now presents externally as two buildings, that the buildings are now stepped, that the level of accommodation for residents has been reduced, and that the commercial areas have been changed, are all, in themselves, stark contrasts to what was originally proposed. Whereas previously the development comprised one building, there are now distinctly two. Even though the two towers spring out of a common podium, nevertheless they present in elevation as two buildings. It may well be that at street level adjacent to the development there may not be a significant difference, but that is not to say the upper levels should be disregarded or not taken into account.

Applying the test of whether the changes are so substantial that the application now must be regarded as a new one I am satisfied, as a consequence of the change in the configuration and the internal provision within the building, that it is not the same development. It follows therefore that notwithstanding Mr Sahade's submission that any change can be regarded as an amendment, I am nevertheless not prepared to apply the analogy of amendments made to legislation which he so forcefully put to the Court. We are dealing here with changes which are being wrought in the course of considering an application for development consent. The reason that the Court is not prepared to regard all changes as mere amendments is because a development application must be considered and reviewed. It becomes a question of whether or not the whole process should commence again. Unfortunately for the applicant in the present case, that appears to be the consequence of seeking to rely on the amended plans.

Even if I am wrong, if the Court had been faced with the consent authority opposing the granting of leave to rely upon the amended plans at the hearing, the Court would not have been inclined to grant that leave. I appreciate that both respondents have indicated that if I had found otherwise they would not have opposed the granting of leave. That would have cured the matter in this case. Nevertheless, if they had opposed the granting of leave then I would have been inclined, as a matter of discretion, not to grant it.

I do not need to go that far and I do not. The plans which are now presented to the Court by way of an amendment are not, in my opinion, an amendment. They represent a set of plans of a new development, and accordingly, should be rejected on that basis.

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.