Longhill Projects Pty Ltd v Parramatta City Council

Civil Procedure Act 2005 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000

CASES CITED: Hainbury Pty Ltd v Campbelltown City Council [2007] NSWLEC 713 Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155

APPLICANT Dr S Berveling (barrister) SOLICITOR Bartier Perry LEGAL REPRESENTATIVES:

RESPONDENT Mr P Marincowitz (solicitor) SOLICITOR DLA Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10789 of 2009 Longhill Projects Pty Ltd v Parramatta City Council

JUDGMENT 1 REGISTRAR: The applicant seeks leave to amend its originating process, the Class 1 Application, by way of amended notice of motion filed 27 November 2009. Prayer 2 of the amended notice of motion seeks leave to rely on amended plans. 2 The relevant facts are as follows. On 18 April 2008 the applicant lodged a development application with the respondent, Parramatta City Council ("the Council"), for demolition of a building and construction of a multi-unit housing development containing 6 three bedroom dwellings. By way of Notice of Determination dated 11 November 2008, the Council refused the development application. On 7 September 2009, the applicant lodged with the Council a request for a review of its determination pursuant to s 82A of the Environmental Planning and Assessment Act 1979. The appeal to this Court was lodged on 26 October 2009. Having regard to the Class 1 Application, the appeal purports to be lodged against the Council's deemed refusal of the s 82A review. On 9 November 2009 the s 82A review was refused and on 12 November 2009 a notice of determination to that effect was issued by the Council. 3 It is against that background that the applicant now seeks leave to amend the Class 1 Application. Section 97(1) of the Environmental Planning and Assessment Act 1979 ("the EPA Act") creates the right of appeal to the Court. It provides: (1) An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application (including a determination on a review under section 82A) may appeal to the Court within 12 months after: (a) the date on which the applicant received notice, given in accordance with the regulations, of the determination of that application, or (b) the date on which that application is taken to have been determined under section 82 (1).

4 Both the applicant and respondent agree that the originating process ought to be amended. The applicant, by prayer 1 of the notice of motion, proposes that it should be amended to be an appeal against Parramatta City Council's determination of the development application of 11 November 2008. The respondent, however, submits that the appropriate order is for leave to be granted to the applicant to amend the Class 1 Application so that it is an appeal against the actual refusal of the s 82A review application.

Submissions 5 The applicant submits that the amendment proposed by prayer 1 of the notice of motion is appropriate in circumstances where an appeal does not lie against a deemed refusal of s 82A review application. Dr Berveling, counsel for the applicant, submits that if the originating process is amended in the manner proposed, the words "development application (including a determination on a review under s 82A)" in s97(1) result in all material the subject of the s 82A determination being part of the development application the subject of the appeal. The applicant therefore says that leave is not formally required to rely on the amended plans that were the subject of the s 82A review. However, the applicant asks that prayer 2 of the notice of motion, which seeks leave to rely on amended plans, be made for the sake of clarity.

6 The respondent proposes that the originating process ought to be amended to reflect that it is an appeal against the actual refusal of the s 82A review application. The respondent says if such an amendment is made, leave is not required for the applicant to rely on the amended plans. The respondent submits that an appeal can be lodged against a s 82A determination, and questions the assumption that an appeal does not lie against a deemed refusal of an application made under s 82A. In that regard, the respondent refers to s 82(1) of the EPA Act, which provides: (1) A consent authority that has not determined a development application within the relevant period, prescribed by the regulations, applicable to the development the subject of the development application is, for the purpose only of section 97, taken to have determined the application by refusing consent on the date on which the period expires. 7 Clause 113(1) of the Environmental Planning and Assessment Regulation 2000 then sets out as follows: (1) For the purposes of section 82 (1) of the Act, a development application is taken to be refused if a consent authority has not determined the application within: (a) 40 days, except in the case of development referred to in paragraph (b), or (b) … 8 The respondent has also drawn my attention to the Note contained at the end of cl 113, which provides: Note. Clause 107 provides that certain periods of time are to be ignored when calculating a 40-day or 60-day period under this clause. Deemed refusal provisions do not apply to development under section 80 (7) of the Act (where a public inquiry is held into designated development) or to any State significant development for which a public inquiry is held.

9 The respondent submits that there is nothing in s 82(1) or s 113 that precludes the application of s 97 to a deemed refusal. In particular, the respondent points out that the notation to s 113 does not indicate that the deemed refusal provisions do not apply to a review under s 82A.

10 The respondent submits that in considering whether to grant leave to amend the Class 1 Application in accordance with the notice of motion filed by the applicant, the Court must consider the principles set out in sections 56-65 of the Civil Procedure Act 2005. Specifically, I would be required to consider the provisions of s 65 in order to determine whether leave should be granted to amend the originating process in circumstances where the time to appeal the Council's determination of the original development application has now expired. The respondent submits that such a question will not arise if leave is granted to amend the originating process to reflect an appeal against the outcome of the s 82A review. 11 Further, the respondent says that I would have to consider, consistent with s 58(2)(vi), the degree of injustice that would be caused to each of the parties in order to determine whether leave to amend the originating process ought to be granted. The respondent submits that if leave is granted in accordance with the orders proposed by the notice of motion, the respondent would suffer injustice by losing the benefit of raising contention 1, which states that the proposed development fails to satisfy s 82A(4)(c) in that the amended plans the subject of the s 82A review application resulted in a development that was not substantially the same as the development described in the original application.

12 The respondent therefore submits that in circumstances where an appeal lies against a s 82A review, the proper course would be for an amendment to be made to the Class 1 Application that simply reflects that the deemed refusal is an actual refusal. This would then avoid the prejudice that would be caused to the respondent by losing the benefit of raising contention 1. The respondent also submits that if there exists no appeal against a deemed refusal of a s 82A review, any resulting defect in the originating process is cured by the fact that the refusal is now an actual refusal.

Interpretation of s 97 13 The question of whether an amendment ought to be made, and if so on what terms, turns on the interpretation of s 97(1). The applicant submits that on the proper interpretation of s 97(1), the words "development application (including a determination on a review under section 82A)" limit the applicant to an appeal against the development application, but that the development application includes any review and determination under s 82A. However, the respondent's position pre-supposes that an applicant can elect to appeal against either the determination of the development application or the s82A review application. For reasons which I will outline, I form the view that neither the applicant's nor the respondent's interpretation of s97(1) should be adopted.

14 The words in s 97(1) must be interpreted in the context of the nature of s 82A. Section 82A is as follows: 82A Review of determination (1) If the consent authority is a council, an applicant may request the council to review a determination of the applicant's application, other than: (a) a determination to issue or refuse to issue a complying development certificate, or (b) a determination in respect of designated development, or (c) a determination in respect of integrated development, or (d) a determination made by the council under section 116E in respect of an application by the Crown. (2) A request for a review may be made at any time, subject to subsection (2A). (2A) A determination cannot be reviewed: (a) after the time limited for the making of an appeal under section 97 expires, if no such appeal is made against the determination, or (b) after an appeal under section 97 against the determination is disposed of by the Court, if such an appeal is made against the determination. (3) The prescribed fee must be paid in connection with a request for a review. (3A) In requesting a review, the applicant may make amendments to the development described in the original application, subject to subsection (4) (c). (4) The council may review the determination if: (a) it has notified the request for review in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the council has made a development control plan that requires the notification or advertising of requests for the review of its determinations, and (b) it has considered any submissions made concerning the request for review within any period prescribed by the regulations or provided by the development control plan, as the case may be, and (c) in the event that the applicant has made amendments to the development described in the original application, the consent authority is satisfied that the development, as amended, is substantially the same development as the development described in the original application. (4A) As a consequence of its review, the council may confirm or change the determination. (5) The decision whether or not to review the determination must not be made by the person who made the determination unless that person was the council, but is to be made by a person who is qualified under subsection (6) to make the review. (6) If the council reviews the determination, the review must be made by: (a) if the determination was made by a delegate of the council - the council or another delegate of the council who is not subordinate to the delegate who made the determination, or (b) if the determination was made by the council - the council. (7) The council must give notice of the result of the review to the applicant as soon as practicable after the review. (8) If on the review the council grants development consent, or varies the conditions of a development consent, the council must endorse on the notice the date from which the consent, or the consent as varied, operates. (9) If on a review the council changes a determination, the changed determination replaces the earlier determination as from the date of the review. (10) If on a review the council grants development consent, or varies the conditions of a development consent, the council is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal made under section 97 in respect of its determination withdrawn at any time prior to the determination of that appeal. (11) A decision on a review may not be further reviewed under this section.

15 The interaction of ss 82A, 82 and 97 was considered by Lloyd J in Hainbury Pty Ltd v Campbelltown City Council [2007] NSWLEC 713 (Hainbury). In those proceedings His Honour determined that the applicant was outside the time for lodging an appeal against the refusal of a development application, notwithstanding that a request for a s 82A review had been lodged and remained to be determined. At [9]-[12] His Honour states: 9 The question is a relatively simple one: whether or not the applicant has commenced an appeal within the time allowed by s 97(1). In the present case, the applicant is clearly outside the time following the determination of the development application; that is, the development application was determined on or about 31 May 2006, the proceedings were commenced in this court on 13 July 2007.

10 The argument as I understand it on behalf of the applicant is that by making an application for review under s 82A within the time, which application for review has not yet been determined, the appeal has been brought within time. There are a number of difficulties with this submission.

11 Firstly, an application for review is not a development application. Section 82A employs the term "request"; that is, an applicant may request the council to review a determination. Subs (2), refers to the time within which a request for a review may be made, and the use of the word "request" denotes the grant of a power to the council rather than an obligation to review an application for review. This I think is a reason why a request for a review under s 82A was not included in s 82(1).

12 Returning to s 82(1), it is clear that a request for review is not subject to that deemed refusal provision in the same way as that subsection applies to a development application. Section 97(1), I have noted, includes the words, "(including a determination on a review under s 82A)"; that is, if the council determines a review under s 82A then a right of appeal subsists until a period of twelve months has elapsed after the date of that review. This much is confirmed by s 82A(9)...

16 The respondent says that these words should be understood in the context of those proceedings, and that they do not necessarily mean that an appeal cannot be lodged against a deemed refusal of a s 82A review. Surprisingly, there is no other judicial guidance on the interpretation of s 82A and the manner in which it interacts with s 97(1).

17 In order to understand s 97(1) and the words "development application (including a determination on a review under section 82A)", it is necessary to first understand the operation of s 82A. In doing so, the following points can be made. First, as per Lloyd J in Hainbury, the words of s 82A do not allow a person to make an "application" under the section. His Honour states at [11] that "Section 82A employs the term "request"; that is, an applicant may request the council to review a determination." 18 Secondly, the word "determination" is not used to refer to the outcome of such a request. The only context in which the word "determination" is used in s 82A is to refer to the outcome of the development application. There can be only two outcomes of a request pursuant to s 82A(4). That is, a Council "may confirm or change the determination". Where the Council confirms the determination, the only "determination" is the original outcome of the development application. Where the Council changes the determination, however, s 82A(9) applies such that "the changed determination replaces the earlier determination as from the date of review." On my view, a "changed determination" as referred to in s 82A(9) is one that modifies the outcome of the development application by either refusing a development application that was approved, approving a development application that was refused, or changing the conditions imposed on an approval of a development application. In those circumstances, the "determination" of the development application is the changed determination resulting from the s 82A review. 19 Turning then to s 97(1), this section allows an applicant the right to appeal where they are "dissatisfied with the determination of a consent authority with respect to the applicant's development application (including a determination on a review under section 82A)". Where the outcome of the s 82A review is to confirm the determination, the only determination that may be the subject of a s 97(1) appeal is the original determination of the development application. Where the Council changes the determination as a result of the review, however, an appeal lies against that determination by virtue of the fact that it replaces the original determination. No appeal would lie against the replaced (original) determination. Consequently, the words "(including a determination on a review under section 82A)" relate only to a determination that has replaced the original determination pursuant to s 82A(9). There is no other form of a "determination on a review under section 82A". 20 In other words, the only determination against which an applicant can appeal is the original determination of the development application, unless that original determination has been replaced by a changed determination following a s 82A review. Where the latter occurs, the words of His Honour Lloyd J at [12] apply: "if the council determines a review under s 82A then a right of appeal subsists until a period of 12 months has elapsed after the date of that review."

21 The result is that unless the original determination is changed by the outcome of the s 82A review, no appeal lies against the outcome of the s 82A request. 22 Similarly, there can be no appeal against a deemed refusal of a s 82A request. I accept the submission of the applicant that s 82(1) does not apply to a request made pursuant to s 82A, given that s 82A uses the term "request" whereas s 82(1) relates to a consent authority that "has not determined a development application". Therefore, the present appeal, which relies on a deemed refusal of a s 82A review, has not been properly brought.

23 The outcome of the s 82A request in the present proceedings did not result in a changed determination. The Notice of Determination, dated 12 November 2009, refused the "Section 82A review of determination". Since there is no provision for a refusal pursuant to s 82A, the refusal is akin to a confirmation of the original determination. Therefore, no appeal lies against the s 82A review determination and an amendment to the Class 1 Application ought not be made in accordance with the terms proposed by the respondent. 24 Contrary to the submission of the applicant, if leave is granted to amend the Class 1 Application in accordance with prayer 1 of the applicant's amended notice of motion, the appeal would then relate only to the original determination of the development application and would not concern any plans that were the subject of the s 82A review. Leave to amend the Class 1 Application 25 The respondent submits that prejudice would be caused to it, by reason of it losing the benefit of relying on the first contention outlined above, if leave were granted in accordance with prayer 1 of the amended notice of motion. However, this submission was made in the context of the respondent submitting that the applicant could appeal against the actual refusal of the s 82A review. I have found that such an appeal cannot be made. Even if there was prejudice or injustice caused to the respondent by it losing the benefit of relying on one or more contentions by reason of the amendment being made, that prejudice does not outweigh the injustice that would be caused to the applicant if it were not permitted to bring a properly founded appeal to the Court. The respondent has raised no other issues of prejudice or injustice. 26 Section 64(2) of the Civil Procedure Act 2005 states, relevantly, that "all necessary amendments are to be made for the purpose of… correcting any defect or error in the proceedings…" The present application proposes an amendment of such a nature. The proceedings, as currently framed, are not properly brought. The proposed amendment reflects the proper appeal that is available to the applicant. Accordingly, in the circumstances it is entirely appropriate to make prayer 1 of the amended notice of motion. 27 I note, however, that the time for lodging an appeal pursuant to s 97(1) expired following the Class 1 Application but prior to the date of the amended notice of motion. In such circumstances, s 65(2)(c) of the Civil Procedure Act allows the applicant, with the leave of the Court, to amend the originating process by substituting a new cause of action that: "…in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process".

Both the appeal as presently framed and the proposed appeal relate to the Council's determination of the development application number 258/2008. I am therefore satisfied that the substitution of an appeal against the original determination of the Council dated 11 November 2008 in lieu of the appeal as presently framed results in a substitution of a cause of action that arises from substantially the same facts. The expiry of the time for the appeal does not therefore preclude the Court from granting leave to the applicant to amend the originating process as proposed by the amended notice of motion.

Leave to amend the development application 28 I now turn to the question of whether leave ought to be granted to the applicant, pursuant to prayer 2 of the notice of motion, to rely on the amended plans that were the subject of the s 82A review. The respondent neither consents nor opposes such leave being granted. The nature of each of the original and amended plans are set out on pages 2 and 3 of Annexure B to the affidavit of Mr Nangle sworn 18 November 2009. Having regard to those paragraphs, and without the benefit of reviewing each set of plans or hearing evidence and submissions on the nature of the amendments, it appears that I can summarise the amendments as follows: o A change in the number of separate building forms from two to three; o A change in the number of dwellings in each building from three to two; o Removal of attics; o Changes in the staggered setback of the buildings; o Changes to the entry for Unit 1; o Decrease in the number of parking spaces in basement; o Removal of direct access to the basement car park for each unit, and replacement with two locations for pedestrian access; and o Revised facades to Tintern Avenue and Robert Street. 29 Jagot J in Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155 determined that where a question arises as to whether leave ought to be granted to an applicant to rely on amended plans, there are two questions that ought to be considered by the Court. The first question is whether the Court has the power to grant leave for the amendment. The second question is whether there are any discretionary reasons why that power should not be exercised in the circumstances of the proceedings. At [16] Her Honour found that in answering the first question, the Court should consider: "whether the development now proposed is an amendment or variation of the application, recognising that an amendment or variation may result in change to the proposed development, but that the Court has no jurisdiction to entertain an original application." 30 In determining the first question, I am satisfied that the amendments outlined above result in a changed development and do not create an original application.

31 Turning then to the second question, the respondent has prepared its Statement of Facts and Contentions based on the amended plans. It cannot be said, therefore, that any prejudice is caused to the respondent if leave is granted to rely on amended plans. Rather, there are benefits for both parties in having the plans that were the subject of the s 82A review as the plans that are before the Court for consideration. I am therefore satisfied that there are no discretionary reasons as to why leave should not be granted, and that leave ought to be granted to the applicant to rely on the amended plans that were the subject of the s 82A review and that are outlined in prayer 2 of the amended notice of motion. 32 The interpretation of ss 82A and 97(1) that I have adopted has the consequence of triggering s 97B of the EPA Act in the present proceedings, therefore causing the applicant to be liable for an adverse costs order notwithstanding that the amended plans have already been before the Council for a s 82A review. Whilst this may cause an injustice, it might also be that the Council have incurred minimal costs in accordance with s 97B(2). Notwithstanding that, s 97B creates an obligation on the Court to make a costs order in circumstances where it has granted leave to the applicant to amend the development application, unless the amendments can be described as a "minor amendment". 33 Having regard to the summary of the amendments made at [26] above, it appears that the amendments are other than a "minor amendment", and that consequently the Court is obliged to make an order pursuant to s 97B(2). However, the parties have not yet had the opportunity to make submissions in that regard and therefore I should not make an order until such time as that opportunity is given. 34 In accordance with the above reasons, I make orders 1 and 2 of the applicant's amended notice of motion filed 27 November 2009.

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