Longhill Projects Pty Ltd v Parramatta City Council

Longhill Projects Pty Ltd v Parramatta City Council - [2009] NSWLEC 1414 - NSWLEC 2009 case summary — Zoe

[18]

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.

[24]

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."

[26]

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".

[28]

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.

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