Martin v Tweed Shire Council

Legislation Cited: Civil Procedure Act 2005 (NSW), s 64
Environmental Planning and Assessment Act 1979 (NSW), s 8.7, 8.25
Environment Planning and Assessment Regulation 2021 (NSW), ss 37, 38
Land and Environment Court Rules 2007 (NSW), r 3.7
Tweed Local Environmental Plan 2014

Cases Cited: Bridge Shipping Pty Limited v Grand Shipping SA and Another (1991) 173 CLR 231
Ebsworth v Sutherland Shire Council [2005] NSWLEC 603
Gordon & Valich Pty Limited v City of Sydney Council [2007] NSWLEC 780
Hanna v Council of the City of Ryde [2010] NSWLEC 1094
Orico Properties Pty Limited v Inner West Council [2017] NSWLEC 90
Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292
Reid v Woollahra Municipal Council [2023] NSWLEC 1611
Scarf v Shoalhaven City Council [2021] NSWLEC 128
Village McEvoy Pty Limited v Council of the City of Sydney [2009] NSWLEC 1214
Waterland Blue Mountains Natural Water Pty Limited v Blue Mountains City Council [2006] NSWLEC 537

Category: Procedural rulings

Parties: John Martin (First Applicant)
Bonita Martin (Second Applicant)
Benjamin Martin (Third Applicant)
Joseph Martin (Fourth Applicant)
Ethan Martin (Fifth Applicant)
Tweed Shire Council (Respondent)

Representation: Counsel:
A Gadiel (Solicitor) (Applicants)
J Farrell (Respondent)
Solicitors:
Mills Oakley (Applicants)
Sparke Helmore (Respondent)

File Number(s): 2025/486287
2026/29402

Publication restriction: Nil

JUDGMENT

1. The substantive proceedings concern two appeals that have been consolidated and are being run and heard together. The appeal filed first in time is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal by the respondent of a development application for the use of dwellings and ancillary structures on the site (DA appeal). The second appeal is pursuant to s 8.25 of the EPA Act against the respondent’s deemed refusal in respect of building information certificate no BC25/0105 (BIC appeal) in respect of those same dwellings and structures.

2. By notice of motion filed on 24 March 2026, the applicants seek to amend the BIC appeal and the DA appeal. The motion is supported by an affidavit affirmed by the applicants’ solicitor.

3. The amendment of the BIC appeal is uncontroversial, so I will deal with that matter first. It is settled law that there is no power or discretion for the court to amend an application for a building information certificate: Scarf v Shoalhaven City Council [2021] NSWLEC 128 at [47] – [49]. The application before me though is an application to amend the Class 1 Application form commencing the BIC appeal proceedings so that it conforms with the applicants’ building information certificate application form.

4. This application to amend is made under s 64 of the Civil Procedure Act 2005 (NSW) and the Class 1 Application form is properly characterised as a document in the proceedings and, accordingly can be amended using this power.

5. The solicitors for the applicants have prepared a draft amendment to this Class 1 Application form for the court’s consideration and it is appropriate for orders to be made allowing that amendment.

6. Turning now to the proposed amendment in the DA appeal. This is opposed by the respondent on the basis that the proposed amendment to the DA amounts to a new application and, accordingly, is outside the court’s power to grant.

7. The court’s power to amend a development application is contained in ss 37 and 38 of the Environment Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) which provide:

37 (1) An applicant may, at any time before a development application is determined, apply to the consent authority for an amendment to the development application.

…

38 (1) The consent authority may… approve or reject an application for an amendment to a development application submitted under section 37.

8. It is well established that the court has no power to entertain an original application: Ebsworth v Sutherland Shire Council [2005] NSWLEC 603; Radray Constructions Pty Limited v Hornsby Shire Council [2006] NSWLEC 155 (2006) 145 LGERA 292 (“Radray”) at [6]; Orico Properties Pty Limited v Inner West Council [2017] NSWLEC 90 at [8].

9. The applicants submit that their proposal is an amendment or a variation to the DA and that the court should adopt the broad approach taken by Jagot J in Radray. In that decision her Honour considered the availability of the power to amend to be determined by having regard to the beneficial and facultative nature of court’s power to grant an amendment and that the provision be given “the widest interpretation which its language will permit”: Radray at [9] quoting Bridge Shipping Pty Limited v Grand Shipping SA and Another (1991) 173 CLR 231 at 260 – 261 per McHugh J.

10. With that guidance, it is appropriate at this point to consider the nature of the amendments proposed by the applicants. The applicants’ proposed development is described in the respondent’s Notice of Determination for the DA and in order 2 in the Class 1 Application form as:

“use of existing buildings as attached dual occupancy and a detached bedroom suite, swimming pool and other associated ancillary works & structures and proposed carport and dwelling additions and covered walkway”.

11. The applicants seek to amend the orders sought from the court in the Class 1 form as follows:

“2. Development consent to Development Application DA2025/0492 for use of existing buildings as a dwelling house swimming pool and other associated ancillary works & structures and proposed carport and dwelling additions is granted subject to conditions

2A. The Respondent is directed to consent to the variation of the restriction on use of land thirdly referred to in DP 1119629 so that the preferred site for the location of the residential dwelling on Lot 2 DP 1119629 is the dwelling footprint shown in figure 6 (‘APZ Plan’) in the Bushfire Risk Assessment prepared by Melanie Jackson, 24 March 2026 (ref 2508MAR2716).”

12. The applicants’ evidence also seeks to amend the DA on appeal to the court and exhibited to their evidence are the following documents:

13. a set of amended architectural plans,

14. a schedule of architectural amendments,

15. a bushfire assessment dated 24 March 2026,

16. an on-site wastewater management system upgrade dated 15 March 2026,

17. an erosion and bank stabilisation plan dated 24 March 2026,

18. a biodiversity assessment dated 24 March 2026, and

19. a letter from the solicitors for the applicants to the solicitors for the respondent concerning the existing and future agricultural uses on the site

20. (together, the proposed amendment).

21. The proposed amendment includes a site plan which labels the buildings on the property A to I. This site plan states that approval is sought for:

22. the use of Buildings A and B as a pool and cabana for the purposes of the dwelling house,

23. the prospective use of Building C as a farm shed,

24. the prospective use of Buildings D, E and F as a dwelling house, and

25. the prospective use of Buildings G and H as farm sheds.

26. Building I is labelled on the site plan but no consent appears to be sought for works to it or for its use by the proposed amendment.

27. To understand the particular development that is now being proposed by the applicants’, close review of plans and documents comprising the DA appeal and the proposed amendment is required, particularly so in this case when some of the terminology used in the DA appeal to describe the development is not entirely clear: Gordon & Valich Pty Limited v City of Sydney Council [2007] NSWLEC 780 at [19]. For example, the DA appeal seeks consent for the use of Building C as a detached bedroom suite. From close review of the plans and the documents comprising the applicants proposed amendments, Building C is clearly a 3 bedroom dwelling with a carport, and is described as such in the Statement of Amendments tendered as part of the applicants’ evidence in this motion.

28. The use of Buildings A and B as a pool and cabana is not controversial between the parties for the purposes of the notice of motion. The Statement of Environmental Effects included with the DA appeal states that the use of Buildings G and H as farm sheds to be exempt development. The proposed amendment seeks approval for the prospective use of those buildings as farm sheds.

29. Buildings D, E and F are described in the DA appeal as an attached dual occupancy. Building D is a 3 bedroom dwelling that is attached to Buildings E and F. Buildings E and F appear on the DA appeal plans to be an attached 4 bedroom dwelling, but are also described in the applicants’ evidence as being a 4 bedroom dwelling (Building E) and a 2 bedroom dwelling (Building F). The applicants’ proposed amendment see Buildings D, E and F amalgamated into a single detached dwelling.

30. The applicants’ proposed amendment seeks development consent for the demolition of all internal walls in Building C (except for any load bearing walls), the demolition of the septic system in Building C, and the use of Building C for farm use.

31. The applicants invited the court to consider their DA appeal to include an application for the use of a detached single dwelling, being Building C. The applicants submit that if that is accepted by the court, then their proposed amendment simply moves the location of that use from Building C to Buildings D, E and F. It was submitted that such an approach would be similar to that which is taken by this court where amendments are granted to development applications for changes to uses of areas and proposed layouts than what was originally sought.

32. Even giving the amendment provisions in the EPA Regulation the widest possible interpretation, this argument cannot be accepted by the court. Any amendment to a development application that proposes a different layout, use and even an additional use must still answer the description for which consent was originally sought.

33. If I accept that Building C originally sought consent for use as a 3 bedroom detached dwelling house, the fact remains that the proposed amendment now seeks consent for demolition works and use of Building C as a farm shed. The DA appeal does not seek consent for the use of any building as a farm shed. If I accept that Buildings D, E and F seek approval for use as an attached dual occupancy, the proposed amendment now proposes demolition and building works that would see those buildings used as a single detached dwelling. The applicants proposed amendments seek approval for new uses and also changes to the prospective uses of these buildings and such changes are outside the court’s amendment power.

34. In reaching this conclusion, I am guided by the decision of Pain J in Waterland Blue Mountains Natural Water Pty Limited v Blue Mountains City Council [2006] NSWLEC 537. In that case her Honour found that an amendment to a DA from the use of home industry (bottling water) to a similar operation, where the new proposed use excluded bottling on site sufficiently changed the originally proposed use to a new use, which made it beyond the power to amend. In Hanna v Council of the City of Ryde [2010] NSWLEC 1094, the applicant sought an amendment to change the use of a dwelling in a dual occupancy to affordable housing which Gray R found to be beyond power. In Village McEvoy Pty Limited v Council of the City of Sydney [2009] NSWLEC 1214 the motion to amend proposed new uses in a mixed-use development, including a childcare centre, Gray R again found the proposed new uses to make the amendment beyond the court’s power. In Reid v Woollahra Municipal Council [2023] NSWLEC 1611 (“Reid”), Orr R found the proposal to change a development application for a dual occupancy to a single dwelling to be beyond power.

35. In Reid, Orr R observed at [48] and [49]:

“… I am required to ask if the applicants were to be allowed to amend their development application to seek to carry out the demolition and erection of a single dwelling building and specify the purpose of the use of that building to be a single dwelling, can that be said to be the same development for which consent was originally sought by DA54/2023/1? The answer is no. It could never answer the description of the original application seeking erection of an attached dual occupancy for the specified purpose of an attached dual occupancy.

Conversely to ask the question: If development consent were to be granted for the erection of a dwelling house for that purpose, would the use of such a development as an attached dual occupancy be development for which consent was granted? The answer is no. A consent for a specific development for a specified purpose does not authorise a development for a different use.”

23. Farm shed and farm building are used interchangeably in the evidence tendered by the parties to describe the proposed development and use of Building C. Farm shed is not defined in the Dictionary to the Tweed Local Environmental Plan 2014, but farm building is and

“means a structure the use of which is ancillary to an agricultural use of the landholding on which it is situated and includes a hay shed, stock holding year, machinery shed, shearing shed, silo storage tank, outbuilding or the like, but does not include a dwelling”.

24. Applying the same reasoning used by Orr R in Reid, if the applicants were granted leave to amend their development application to seek to carry out the demolition works and use of Building C as a farm shed, can that be said to be the same development for which consent was originally sought for the use of Building C as a dwelling house? If development consent was granted for the development of Building C as a farm shed, would the use of that farm shed as a 3 bedroom dwelling be development for which consent was granted? The answer to both questions is no, and in fact the definition of farm building expressly excludes dwelling use.

25. Similarly for the amendment proposed to Buildings D, E and F, the case of Reid is directly on point and provides clear authority that such an amendment is outside the court’s power.

26. The respondent has sought its costs of the motion.

27. In making a cost order in Class 1 proceedings, r 3.7 of the Land and Environment Court Rules 2007 (NSW) requires that I am satisfied that an order for costs is fair and reasonable before making such an order. There are a range of circumstances set out in r 3.7(3) that describe the circumstances in which the court might consider it fair and reasonable to make a cost order. That list is certainly not exhaustive, and there is a range of case law where the court has found other circumstances in which it is fair and reasonable to make a cost order.

28. In this case, although I have granted the motion, the hearing of the motion almost solely centred on the proposed amendment which I have declined to grant.

29. The respondent tendered a copy of its solicitors’ letter to the applicants’ solicitors. That letter is dated 20 March 2026 and put the applicants squarely on notice that the proposed amendment would be opposed, the reasons why the respondent considered the proposed amendments to be outside the court’s power to grant and the legal authority in support of its’ position.

30. That letter is largely reproduced in the respondent’s written submissions which were handed up at the hearing of the motion and the legal authorities cited have been largely determinative of the application to amend the DA appeal.

31. The notice of motion seeking the proposed amendment was filed on 24 March 2026.

32. Given the weight of the legal authorities, the clear notice for the basis of the opposition that was provided to the applicants, and the cost the respondent has been put to in opposing the motion, such conduct makes it fair and reasonable for the applicants to bear the costs of the respondent for this notice of motion.

Orders

33. The Court orders:

34. The Notice of Motion filed on 24 March 2026 is granted to the extent that the applicants are granted leave to file and serve the amended Class 1 application form in the BIC appeal as tendered at Tab 8 of Exhibit A by 5PM on Monday 13 April 2026.

35. No other orders sought in that motion are granted.

36. The applicants are directed to pay the respondent’s costs of the notice of motion as agreed or assessed.

S Froh

Registrar of the Court

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Amendments

13 April 2026

Added File Number: 2026/29402

14 April 2026

Typographical error in the case name.