McDonald's Australia Limited v Ashfield Council

The Legislative Provisions 8The first prayer for relief is based on the respondent Council's submission that because the applicant was "allowed" to file an amended DA, which did not involve a minor amendment, pursuant to s 97B of the Environmental Planning and Assessment Act 1979 ('EPA Act'), the Court must make an order for costs. 9It was contended by the Council, and appears to be conceded by the applicant, that the relevant costs powers may be found in the terms of s 97B, as it stood at the date of the relevant DA, namely: 97B Costs payable if amended development application filed (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal. (3) The regulations may provide for circumstances in which subsection (2) does not apply. (4) This section has effect despite the provisions of any other Act or law. 10The section was amended, effective 28 February 2011, to read as follows: 97B Costs payable if amended development application filed (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application. (3) The regulations may provide for circumstances in which subsection (2) does not apply. (4) This section has effect despite the provisions of any other Act or law. 11It will be seen that sub-section (2) of s 97B was amended to delete the words "incurred" and "original", and to substitute, in place of the word "incurred", the words "thrown away". 12Pursuant to s 136 of Schedule 6 of the EPA Act, the amendments to s 97B(2) "do not apply to or in respect of a development application lodged with a consent authority before the commencement of section 82B", which commenced on 28 February 2011. As the relevant DA was lodged with Council, prior to that date (see above at [2]), I accept that it is s 97B, in its unamended form that is relevant. 13In the alternative, the respondent Council submits that an order for costs is fair and reasonable in the circumstances, and, if successful, also seeks an order that the applicant pay its costs of the motion. The alternative Prayer relies upon s 98 of the Civil Procedure Act 2005, and the provisions of Land and Environment Court Rules 2007 ("the Court Rules") r 3.7, which, in respect of proceedings in Class 1, specifically provides in subrules 3.7(2) and (3) as follows: (2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. (3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following: (a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question: (i) in one way was, or was potentially, determinative of the proceedings, and (ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings, (b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents: (i) that are required by law to be provided in relation to any application the subject of the proceedings, or (ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application, (c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings, (d) that a party has acted unreasonably in the conduct of the proceedings, (e) that a party has commenced or defended the proceedings for an improper purpose, (f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where: (i) the claim or defence (as appropriate) did not have reasonable prospects of success, or (ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable. 14The following provisions of the Court's Practice Note regarding Class 1 development appeals are also relevant to the argument on costs: 7. If the plans the subject of the determination of a consent authority in respect of which a development appeal application is to be made do not satisfy the requirements in Schedule A, the applicant, before lodging the development appeal application, may amend the plans without seeking leave of the Court, but only to the extent necessary to cause the plans to satisfy the requirements in Schedule A. Any other amendment is to be by leave of the Court. ... 27. Subject to paragraph 7, an applicant for consent may not rely on an amended development appeal application including amended plans unless it first obtains the leave of the Court. Applicants for consent should ensure that their development appeal application is suitable for assessment at the hearing before commencing the development appeal, including ensuring plans satisfy the requirements in Schedule A. Multiple requests for leave to amend applications (including plans) cause unnecessary delay and cost for all parties and should be avoided. 15The actual detail of the "requirements" contained in Schedule A is not of relevance to the argument.

Background to the proceedings 16Although the Court ultimately upheld the development appeal, the proposal was amended, both prior to its lodgement, and throughout the course of the proceedings. Those amendments are pertinent to the costs dispute, and are, therefore, briefly summarised in the following paragraphs.

The first amendment 17The applicant's Class 1 appeal was commenced on 17 August 2010, and on the same day, the applicant filed a NOM and supporting affidavit seeking leave to rely on an amended DA comprising that amended application, which the applicant had caused to be lodged with the Council in accordance with s 82A of the EPA Act. 18That NOM came on for hearing on 14 September 2010, and consent orders were made granting leave to amend, as outlined in the attachments to the supporting affidavit, and on the basis that the applicant pay: "...those costs of the Respondent that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal, as relates to the amendments the subject of the Notice of Motion filed 17 August 2010, in the amount of $10,000 within 28 days of this Order" pursuant to s 97B(2) of the EPA Act. 19That amount was paid in due course. 20After a series of directions hearings, a s 34 conference was held on site, before Commissioner Tuor, on 1 November 2010.

The second amendment 21On 22 November 2010, the applicant filed a further NOM, and a supporting affidavit, seeking leave to rely upon a further amended DA (the amended plans appear in Exhibit C1 at tab 2). Again consent orders were made (on 26 November 2010), granting the applicant leave to rely on amended plans. An order for costs "thrown away" was made, and the relevant costs were paid. 22In the eventual proceedings before Commissioner Brown, the plans prepared in accordance with the consent orders of 26 November 2010 were tendered as Exhibit A. A subsequent amended landscape plan, dated 7 December 2010, became Exhibit B.

The hearing of the substantive matter begins 23Commissioner Brown conducted the hearing on 13 and 15 December 2010. Council relied in those proceedings upon a Statement of Facts and Contentions ('SFC') filed on 22 September 2010 (currently before the Court in Exhibit C1, tab 3). That SFC raised: (1) issues concerning the design of the building, with respect to its alleged "detraction from the Haberfield Heritage Conservation Area", (2) issues with the signage of the building for the same reasons, (3) alleged unacceptable noise impacts for the residential neighbourhood, (4) unacceptable crime and anti-social behaviour at and within the immediate vicinity of, the site, and (5) incompatibility of the restaurant with the "character values and significance" of the adjoining Haberfield Heritage Conservation Area. 24The Council led evidence from its heritage expert Robert Moore (Exhibit C1, tabs 4 and 13), its acoustic expert Louis Challis (tab 12), its odour expert Ronan Kellaghan, its stormwater expert Peter O'Sullivan, its traffic expert John Hanlon, and its town planning expert Andrew Johnstone. 25Discussions to which Mr Moore was privy involved the advancement of a proposal of a contemporary design, "following the recent trends in the company's architectural presentation of its premises as referenced by its recently completed Military Road, Cremorne site". A draft Heritage Impact Statement had been presented by Otto Cserhalmi. Moore asserted that the experts had agreed, or at least they had not disagreed, "that the development should be of a contemporary architectural character, but ... of a nature responsive to its sensitive setting", having regard to the architectural character of the building, its bulk and scale, the choice of surfaces and textures, the project's interface with development nearby (mainly houses in a residential neighbourhood), traffic planning, landscaping, and screening the development from the heritage-listed park on Parramatta Road. 26In his evidence Mr Moore commented: I was surprised, therefore, when the architectural design comprising the application before the Court was lodged the Council, supported by the same Heritage Impact Statement with few amendments, yet presenting as a very different building, and adopting characteristics which departed from what I had felt were outlined and mutually understood at the meeting with Council. 27The respondent's solicitor, Cecilia Rose, deposes in an affidavit sworn 25 October 2011 (par 17) that Moore's "reference to the design style of the Cremorne site is a reference to the design style" tendered as Exhibit 13 in the proceedings before Brown C. 28For some reason unexplained to the Court, Robert Staas replaced Cserhalmi as the applicant's expert, and his evidence was tendered to Brown C. (It was tendered before me as Exhibit C1, tab 5). Staas and Moore did a joint report (tab 6), in which Mr Moore noted that the proposed design: ...is unnecessarily assertive and stylistically incompatible with the Conservation Area and differs in this regard from designs that were under earlier discussion with the Applicant. This is not necessary for the proposed development to function successfully in its context, and avoidable by design. 29Eventually, agreement was reached between the acoustic experts (see Exhibit C1, tab 7), and between the odour experts. It also appears that neither stormwater nor traffic was in serious dispute.

An interim judgment is given 30After the hearing on 13 and 15 December 2010, Commissioner Brown gave an interim judgment on 23 February 2011 (McDonalds v Ashfield Council, NSWLEC, unreported, see Rose affidavit, Annexure B). 31As one would expect from the learned Commissioner, the judgment contains a fulsome summary of the issues, of the agreements and disagreements among the experts, and of the approach the learned Commissioner took to resolving the manner. 32In some respects, the Commissioner decided that the proposed conditions of consent and the imposition of a trial period might resolve most of the operational matters in dispute, such as noise. (See [40] for his comments on supplementary acoustical reporting). 33His focus was accordingly on the heritage matters, design issues and signage. 34On the heritage dispute, Commissioner Brown commented at ([22]-[26]): 22 The dispute between the experts centres on the design of the proposed building and the impact on the heritage significance of the Haberfield Conservation Area and the identified heritage items. The dispute between the Mr Moore and Mr Staas was that Mr Moore saw the design as being inappropriate given its heritage context whereas Mr Staas saw the design as being acceptable in the same context. There was however no dispute that any new building on the site should have a contemporary design. 23 In balancing the competing evidence of Mr Moore and Mr Staas, I prefer the conclusions of Mr Moore on this issue. I agree that the proposed design has features and materials that display an insensitivity to its context, if only at a subtle level, even though the form, scale, bulk and arrangement of the building on the site are acceptable. The curved external walls that form an extension of the parapet on the south, west and east elevation and extend to ground level are the most dominant features of the design. The curved features on the south elevation to the dining area add to the unsuitability and prominence of the design in this location, although the extent of this feature was not clear from the plans (see Attachment 1). 24 In coming to this conclusion, I accept that the impact on the heritage significance of the items and the Haberfield Conservation area is not that significant that a refreshment room/drive-in take away establishment with associated car parking and signage could not be located on the site. I also accept that the site does not have a strong or direct relationship with Ashfield Park, being separated by the heavily trafficked Parramatta Road and that its relationship with the Haberfield Conservation Area is also limited and somewhat detached because of its commercial zoning and location outside the conservation area. The former sub station site has a similar relationship with the site. 25 However it would be inappropriate, in my view, to have no regard to the heritage items and the conservation area in the consideration of this application given their heritage status and their proximity to the site. In my view, the site calls for a design that is more neutral or moderate and does not draw attention to itself through its design, colours and materials. Mr Moore described the appropriate design solution as needing to be "architecturally quiet". I agree. If the rhetorical question was asked of the development; what features of the proposed design respond to its heritage context, I could reasonably conclude that the answer would be none. 26 Even though I have found that the proposed design is unacceptable, it is not fatal to the application. The evidence of Mr Moore was that other designs had been discussed prior to the current plans and examples of other designs that are more responsive to its context have been prepared (although not necessarily in sufficient detail for their assessment) and tendered as Exhibit 13. I propose to allow time for the applicant further consider the design of the proposed building, in addition to other matters raised later in the judgment that require further attention by the applicant. 35The Commissioner thought signage was an important consideration (see [47]), but he noted that the proposed building was to be redesigned, with different signage likely to be proposed, which would need to be reassessed against the requirements in the relevant Development Control Plan. 36He thought that the question of the trial period was "finely balanced", but its imposition could serve a number of useful purposes, including in respect of the proposed Plan of Management (see [58]). 37Under the heading "Directions", the learned Commissioner said ([60]-[62]): 60 The judgment identifies a number of matters that require further consideration by the applicant. These are: amended plans that reflect the design of the building similar to that identified in Exhibit 13, including a revised design for the drive-through ordering enclosure, but retaining a similar floor area and configuration to the current application plans amended signage plan, consistent with Part C2 of DCP 2007, a supplementary acoustical report addressing the means by which any noise impacts from the drive-through ordering enclosure are to be addressed, and amendments to the Plan of Management to include more specific details on the numbers of security personnel, the times that they operate and their specific duties 61 Amended conditions are also to be provided that reflect the findings in the judgment, including: right turn movements into and out of the site from Dalhousie Street the provision of a signalised pedestrian crossing across Dalhousie Street, at the intersection with Parramatta Road only the provision of a noise monitoring system, as proposed by Mr Challis the creation of a grassed verge to the Parramatta Road frontage, and a 12 month trial for the 24 hour/ 7 day per week operation 62 Other matters were agreed by the parties, prior to the hearing and these matters should also be included on the amended plans or revised conditions. Further directions will be made after discussions with the parties on an appropriate timetable for the amended plans and amended conditions. 38The question has arisen on this costs debate as to whether that was a direction to amend, or merely an indication that an amendment might be desirable, and/or would be favourably considered. 39In any event, amendments were made.

Amendments follow the Commissioner's interim findings 40On 28 February, Rose wrote to the applicant's solicitor Felicity Rourke, requesting an indication of the applicant's position on the preparation of a timetable for the provision of amended plans. There were some negotiations between the parties, with agreement reached on 3 March, and directions were made by the Court on 4 March 2011. By consent, a timetable was set for the provision by the applicant of a draft "amendment package" to the Council. 41The applicant provided such an amendment package to the Council on 1 April 2011 (see Exhibit C1, tab 9), the detailed contents of which are set out in pars 39 and 40 of Rose's affidavit. The amendments are said to include (par 40): (a) Changes to the external building appearance whereby all elevations were amended to reflect the comments of Commissioner Brown in the interim judgment; (b) Changes to acoustic detailing including additional structures to shield noise emanating from the drive-though; (c) Changes to wall heights in some locations; (d) Changes to the eastern elevation and external facade of the terrace area; (e) Rearrangement of internal layout including: (i) Relocation of "McCafe" (ii) Rearrangement of "McCafe" dining area (iii) Realignment of sale and service area (iv) Relocation of toilet facilities (f) Changes to signage 42The Council responded with comments on 6 and 21 April 2011 (tabs 10 and 15). Suffice it for me to note that the experts reviewed their materials and opinions as the various alterations rolled out. 43A further amendment package was forwarded to the Council, on 5 May, to address its comments of 6 April 2011 (see Exhibit C1, tab 16), but expert opinions continued to flow in. 44Council's comments of 21 April dealt with some of that material, but the amended package of 5 May went further (details in Rose par 50). 45The respondent filed the final package of amendments on 16 May 2011. (Exhibit 17 before the Commissioner - Rose par 50). 46Those amendments were again tendered before me (as Exhibit C2). The "package" contained the following: The Norton Rose letter of 1 April, plus its enclosures - draft consolidated conditions, updated plan of management, amended plans (tab 4) supplementary acoustic report as summarised by Maddocks. The Council response of 21 April, a further submission from Norton Rose in reply dated 28 April. Maddocks letter of 29 April, Norton Rose letter 29 April. Norton Rose letter of 5 May, together with revised drawings, further revised draft conditions of consent, amended montages, and a sample board. 47The final amendment plans were tendered in the proceedings before the Commissioner (as Exhibit N) and retained with the Court file (see Rourke par 16. A copy can be found behind tab 4 of C2). Photo montages depicting the development, also formed part of Exhibit 17 (Rose par 45 - copies can be found behind tab 11 of Exhibit C1). 48The Council had held a public information session, as a result of which some further submissions were received from objecting residents. These were tendered before the Commissioner (as Exhibit 18), and some oral evidence was given on behalf of those residents.

The final hearing and orders 49In respect of the further hearing, which occurred on 20 May, there is some disagreement as to detail, as between Rose and Rourke, as to precisely what was placed before the Commissioner, but his dealings with the matter are recorded in his final judgment on 2 June ([2011] NSWLEC 1140, at [63]ff - Exhibit C1, tab 19). 50Council raised whether there was power for the Court to agree to the proposed amendments in the package. Commissioner Brown dealt with the objection (at pars [67]-[74]), and concluded that the power was available, "and should be exercised by the court". 51In the course of his consideration, Commissioner Brown noted (at [68]) Mr McEwen's contentions that: The design of the building dictates its response to the conservation area and is for that reason, part of the essence of the development. The design and appearance of the proposed building is fundamentally altered in the revised plans and a comparison demonstrates that the design approach is now entirely different. Every facade has been altered and the internal layout has been changed. In Mr McEwen's submission, the amendments would operate to convert the original application into a new or fresh development application and accordingly there is no power to agree to the proposed amendments. 52He concluded (at [70]): The proposed amendments, in response to the interim findings, will lead to a "changed development". The amended plans reflect changes to the built form, in particular to the external skin of the development. Nevertheless, the proposed development remains a McDonald's restaurant and drive-through facility with a different architectural expression. The essence of the development remains the same. The amendments, although creating a changed development, have not converted the application into a new application. 53He found authority in support of the giving of an interim judgment, provided that it did not result in a modified development "significantly different" from the proposal that was before the Court. He concluded that the development, modified pursuant to the "directions" given on 23 February, "is not significantly different". He went on to say: The modification centred on the appearance and largely adopted the evidence provided by the council's heritage expert, Mr Moore. The directions were clear in that only the treatment of the façade external appearance of the building was to be modified as a specific reference was made to 'retaining a similar floor area and configuration to the current application plans. 54He made similar comments in respect of advertising. 55Mr Moore continued to have some issues with the amended proposal, and argued that it could be improved. At the request of the Court he provided draft conditions reflecting his evidence (see Exhibit C1, tab 17. Staas's supplementary evidence in reply is behind tab 18). The Commissioner, despite the objections of Mr Staas, adopted Mr Moore's reasoning. 56The Commissioner went on to analyse the competing views of the planners, Atalay Bas and Julie Bindon, on the question of signage and its relationship to the provisions of Development Control Plan 2007. He concluded that Ms Bindon's evidence was to be preferred. 57He went on to deal with disputed conditions and the Plan of Management, with which he was satisfied. 58He then proceeded (at [100]) to uphold the appeal, grant consent on the basis of the conditions, reserve costs, and return most exhibits. 59The conditions required some further refinement, and Brown C proceeded to make final orders on 2 June 2011.

The parties correspond regarding s 97B costs 60On 13 September 2011, Rose wrote to Rourke, requesting the payment of the respondent's costs "thrown away as a result of the amended plans". A total of $54,355 was claimed, stated to be limited to "the applicant's amendment package and amended plans", following the interim decision by Commissioner Brown in February 2011. Rose sought to resolve the issue without the need for a NOM. 61On 28 September, Rourke replied (Rose, Annexure I), saying, inter alia: We are firmly of the view that section 97B of the Environmental Planning and Assessment Act 1979 does not apply to amendments made in compliance with the Court's interim finding. Further, we consider it highly unlikely that an order for costs would be made pursuant to rule 3.7 of the Land and Environment Court Rules 2007 in these class 1 proceedings. As you know, pursuant to rule 3.7, the Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. We do not consider that it would be fair or reasonable for an order for costs to be made in respect of the plan amendments made by the Applicant as required by the interim judgment delivered by Commissioner Brown. Notwithstanding the position stated above, some of the costs, for example Counsel's fees and in particular legal costs, are self-evidently excessive in the circumstances of the matters arising between the interim and final decisions and in our opinion would not be ordered in such circumstances.

Section 97B 62The second reading speeches in both houses of the State Parliament when s 97B in its original and relevant form was introduced into the legislation are before the Court (as Exhibit M1). The relevant comments of the Minister and his representative in the Upper House were as follows: The bill provides that in a class 1 appeal before the Land and Environment Court where the court allows an applicant to amend a development application - other than a minor amendment - the court must order that applicant to pay the consent authority's costs thrown away as a consequence of the amendment. This is to act as a disincentive to applicants seeking to amend their proposals before the court without community consultation or input from councils and other relevant authorities. 63In the second reading speech introducing the amendments to the section, the following was said: The bill makes an amendment to section 97B of the Environmental Planning and Assessment Act 1979, which deals with the requirement for the court to make mandatory cost orders where an applicant amends plans during the course of the proceedings. This provision was inserted in the Act in 2008 to provide a disincentive for applicants amending plans during the course of the proceedings. As mentioned earlier, amending plans has the effect of doubling the time and cost of the proceedings because of the need for adjournments to allow for assessment of the revised plans by the consent authority. The amendment to section 97B brings it closer to the original purpose of the provision; namely that it is only the costs of the consent authority thrown away as a result of having to consider the proposed amendments that should be taken into account in determining the quantum of costs and not the assessment of the development application as a whole. 64In the recent case of Hillsong Church Limited v Council of the City of Sydney [2012] NSWLEC 1059, the then Acting Senior Commissioner, Commissioner Brown, considered whether an amended development application could be the subject of a costs order under s 97B. 65At [159] he said: ...Section 97B(1) specifies when the provisions of s 79B apply, that is when the applicant files an amended application. Section 97B(2) however places limitations on the provisions of s 79B(1) by limiting costs to "the original development application the subject of the appeal". Having been amended, the "the original development application the subject of the appeal" effectively no longer exists...To grant a s 97B costs order for the second amendment would be in conflict with s 97B(2).... 66In relation to the same question, in Groeneveld v Wollongong City Council [2009] NSWLEC 149; 168 LGERA 260 ('Groeneveld'), Preston ChJ noted (at [34]): ... what should be considered to be the "original development application" in s 97B(2)...was accepted to be the development application as amended by leave of Registrar Dixon on 12 November 2008. 67His Honour held (at [29]-[32]) that, in determining whether an amendment to a DA is minor, the context of the development and its location must be considered, as a whole. His Honour accepted that the amendments in that case did not result in an entirely new issue being raised, but found that the amendments required the reassessment of an existing issue. 68His Honour went on to find (at [31]) that the amendments could not be said to be merely matters of detail. He continued (at [31]-[32]): 31 ...It is not to the point to say that the development still remains, in broad terms, the subdivision of land, the carrying out of associated works including construction of a roadway, and the removal of trees. Of course, that is true but that is not an answer to whether the amendments are minor. The concept of a minor amendment cannot be restricted to one which involves the retention of the same concept. 32 The fact that the amendments do not require re-notification is, in my opinion, an irrelevant consideration in determining whether or not the amendments should be classified for the purposes of s 97B (1) as minor amendments. The requirement for re-notification will vary from council to council depending upon the applicable legislative and policy instruments applying in the local government area. 69Senior Commissioner Moore, in Cachia v Manly Council (No 2) [2009] NSWLEC 1107 (referred to in Groeneveld v Wollongong City Council [2009] NSWLEC 1226, at first instance, affirmed on appeal by Preston ChJ in Groeneveld), considered (at [26]) it appropriate "to have regard not to the number of amendments but, whether in the context of the issues that are pressed by the council, the total effect of the changes are minor or not". 70In assessing whether the amendments were minor, the Senior Commissioner considered Bannon J's remarks in Coshott v Woollahra Council [1996] NSWLEC 256 (unreported, NSW Land & Environment Court, Bannon J, 19 November 1996, 40149 of 1996) that: ...It is a matter of degree whether changes are major or minor. In a small project, any change may be major. In a large scale project such as a three or four-storey Vaucluse mansion, the relative effect of change may be minimal. 71Pepper J also considered section 97B, in its unamended form, in Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153, 169 LGERA 45 ('Futurespace'), and summarised the relevant considerations for assessing whether an amendment should be considered minor, as follows (at [42] - citations omitted): (a)first, the question of what is "minor" is one of fact and degree; (b)second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development; (c)third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor; (d)fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor; (e)fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor; (f)sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor; (g)seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor; and (h)eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative. 72Her Honour went on to say ([43]): ... it is not necessary for me to articulate with any degree of precision, even if it were possible to do so, what is encompassed by the term "minor" in s 97B of the EPAA.... I agree, however, with the council's submissions to the extent that if the amendments require significant assessment by the consent authority then they are less likely to constitute minor amendments for the purpose of the provision. 73Her Honour had earlier noted (at [37]-[38]): ... the words of s 97B are clear on their face insofar as it is the plain intention of Parliament to impose a liability for costs on an applicant who seeks to rely on an amended development application for anything other than minor amendments, irrespective of whether or not the amendments are ultimately beneficial. ...An unintended result of the enactment of s 97B of the EPAA may be to deter applicants from conducting their appeals efficiently by electing not to narrow the issues in dispute on appeal by making appropriate amendments to their development applications (see, for example, Cachia). Be that as it may, the remedying of this vice is a matter for Parliament and not for the court by recourse to a strained construction of the unambiguous language of s 97B and an unreasonably and unjustifiably wide definition of the term "minor".

Costs in Class 1 Proceedings - Rule 3.7 74In Marinkovic v Rockdale City Council [2007] NSWLEC 71, 151 LGERA 385 at [22]-[26] ('Marinkovic'), Preston ChJ was required to consider the award of costs of "amber light" amendments, in Class 1 proceedings, prior to the insertion of s97B. At [22]-[26] his Honour noted (emphasis mine): [22] There should be a capacity for an applicant in class 1 proceedings before the Court to amend its application to respond to evidence, including evidence of a court appointed expert, and to address concerns of the court that is hearing the appeal. A respondent council should expect that an applicant might need to respond in this way. That is to say, such amendments should be seen to be part of the usual process of conducting a class 1 appeal in this Court. The mere making of an amendment is not by itself a circumstance that always makes it fair and reasonable to make an order for costs. [23] Of course, there must be some limit placed upon this capacity to respond to evidence and to the Court's concerns by means of an amendment. This case is a good illustration. The multiple amendments that were made by the applicant prior to 19 September 2006 is an illustration of where an applicant has stepped outside what can be reasonably expected in the usual conduct of a class 1 appeal. [24] In Millenium Projects Pty Ltd v Baulkham Hills Shire Council [2004] NSWLEC 761(1 December 2004), McClellan J said that amendments to plans in class 1 proceedings is an appropriate course to take where such amendments are responsive to the evidence including the evidence of court appointed experts: see paras 7 and 8. McClellan J went on to say that when amended plans are allowed to be filed, councils may suffer by reason of a need to assess the amended application, with the costs which had already been incurred in assessing the original application being lost. These costs may extend to the costs of its lawyers, some of the costs of experts and also the costs of advertising the application. McClellan J said: ... the price which an applicant can expect to pay, in circumstances where it seeks to lodge an amended application, will be an order for the costs thrown away by reason of the amendment. (see para 9). [25] McClellan J determined in that case that the applicant should pay the council's costs thrown away. Those costs included half of the costs of a court appointed expert who had originally assessed the plans, which costs would be thrown away by that person having to make a new assessment of the amended plans. The costs also included a proportion of the solicitor's costs which had been incurred on the application to amend. McClellan J made an estimate of what those costs were. [26] I do not interpret the decision of McClellan J in Millenium Projects to lay down an inviolate rule that an order for costs should always be made whenever there is an application to amend. I do not disagree with the general statement that McClellan J has said in Millenium Projects, however, as I have said earlier in my reasons, there must be some capacity for an applicant to respond to the evidence and the concerns of the Court. This should be seen as part of the usual conduct of proceedings. Where making that amendment does lead to costs thrown away, then there may be some justification for making an order as McClellan J stated.

75In that case, his Honour (at [29]) did not find it appropriate to make an order that the applicant pay the consent authority's costs arising out of the amended plans. 76In Stanton Dahl Architects v Penrith City Council [2010] NSWLEC 156 ('Stanton'), Biscoe J also had to consider whether the applicant should pay the respondent's costs of a hearing caused by amended plans that were responsive to the Commissioners' "amber light". Relevantly, his Honour noted (at [16]): In recent years commissioners in class 1 planning appeals have consistently adopted the "amber light" approach - as it has come to be called - approved in Marinkovic 2007 of specifying amendments that would meet their concerns, thus contributing to a better community outcome... The amber light approach is facilitative, providing guidance to the parties. 77His Honour then went on to summarise the principles relating to costs of "amber light" amendments as follows (at [18] - citations omitted): (a) where the development application did not propose an unreasonable development, the fact that a commissioner determined that, without specified amendments, the commissioner would not be minded to approve the development, does not of itself make it unreasonable for the applicant to have sought consent for the development that it did; (b) the mere making of amber light amendments is not by itself a circumstance that always makes it fair and reasonable to make an order for costs; (c) where amber light amendments lead to costs thrown away, then there may be some justification for making an order that the applicant pay costs thrown away by reason of the amendment; (d) the making of amber light amendments by itself does not justify an order that the applicant pay the costs of the further hearing. 78In The Owners - Strata Plan No 20226 v North Sydney Council [2012] NSWLEC 148, Craig J noted (at [36]) that r 3.7(2) creates a presumption against an order for costs, which "is only displaced if, in all the circumstances, it can reasonably be concluded that it is fair and reasonable to make an order in favour of any one party". His Honour then went on to cite Biscoe J's observations in Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; 158 LGERA 224 (at [10]) that: One of the purposes of the costs follow the event rule in ordinary civil litigation is to encourage the parties to settle their disputes: Sansom at [26]; Thaina at [65]. In contrast, a no discouragement principle underlies the no costs rule in planning appeals, that is, that persons generally should not be discouraged from exercising their rights of appeal via the prospect of an adverse costs order: Sansom at [22] - [23]. This may be rationalised on the bases that a significant purpose of planning appeals is to improve the decision-making process and that those involved are not adversaries in the same sense as adversaries in conventional civil litigation.

79I also discussed the approach to costs in Class 1, in Universal Childcare Pty Ltd v Leichhardt Municipal Council [2008] NSWLEC 277. I later applied the same principles in Valoth v Parramatta City Council (No 2) [2012] NSWLEC 161.

Section 97B 80Although accepting that it is s 97B in its unamended form that would be relevant to the dispute, the applicant argues that s 97B does not apply to the present case for three reasons: 81Firstly, Mr Galasso SC submits (par 31) that if the Court does not construe the section narrowly, it will create a circumstance where an applicant could be expected to decline to make the amendments in order to avoid the costs order, submit a revised DA responsive to the 'directions' provided in the interim judgment, and, if refused, commence fresh proceedings in the Court. This would be contrary to the "just, quick and cheap" resolution of the dispute, and could "lead to the very multiplicity of proceedings which s22 of the Land and Environment (sic - Court) Act exhorts the Court to avoid" (par 30). 82The section applies only where the Court allows the applicant to file an amended DA (subs par 19). The applicant submits that, as the amendments were made "in response to" Brown C's findings in the interim judgment, and never formally filed in this Court, but instead tendered as an exhibit (pars 4 and 11), they fall outside the scope of s 97B. 83Mr Galasso argues that the language of the section does not contemplate an order being made under the section, unless an amended DA is filed as a result of leave sought and granted (par 20(5)). In this case, the applicant did not apply for leave to file the amendments, and the Court did not 'allow' the filing of them, but instead directed that the application be amended (par 20(1)). The section, therefore, "is not enlivened". 84Mr Galasso submits that s 97B should be construed narrowly, in accordance with its legislative intent, and refers the Court to the second reading speech (extracted above at [62]), pursuant to s 34 of the Interpretation Act 1987. He submits (at par 25) that the section was not intended to apply to amendments, which have been made with considerable community consultation and input. He went on to say (at par 33) that the Parliament's clear intention was for s 97B: to act as a disincentive to Applicants seeking to amend their proposals before the Court without community consultation or input from the councils and other relevant authorities. 85Mr Galasso notes the public information session that was held in relation to the contents of the amendments, as well as the resident submissions received, and submits that, there having been considerable community consultation, it is open to the Court to find that s 97B does not apply (pars 33 and 37). 86Secondly, s 97B does not apply, as, following the grant of leave to amend on 14 September 2010, the DA ceased to be the original application, and the operation of s 97B was, therefore, exhausted (pars 43 and 44). Mr Galasso submits that, properly construed, a s 97B order can be made only once, and, following that occasion, the question of costs must be determined pursuant to the Court's general discretion, rather than s 97B (par 46). 87The applicant notes the making of two previous orders for costs (see above at [18] and [21]), and submits that s 97B does not "contemplate, require, or allow double payment of Council's costs incurred in respect of the assessment of, and proceedings relating to, the 'original'" DA (par 49). Further, it does not contemplate a costs order for anything other than assessment of, and proceedings relating to, the original DA (par 51). 88Mr Galasso urges the Court (pars 54-55) to resist an interpretation of the term "original DA" that refers to the form of application at any point in the proceedings. He argues that a strict interpretation is warranted in circumstances where the section does not give the Court any discretion. 89Thirdly, and finally, the applicant argues (par 56) that it is open to the Court to find that the amendments made by the applicant were 'minor', within the meaning of s 97B(1). 90Mr Galasso submits that the concept of "minor" is relative to the nature of the proposed development, and that, although the subject development was amended externally, "the footprint; configuration; height; size; bulk; scale; siting and use of the proposed development did not change" (par 58). He notes the Commissioner's comments (at [72] of the final judgment), and submits that the Court can comfortably find (par 61): (a)the amendments are "minor" as a matter of fact and degree, having regard to the overall development proposal for the development of a McDonald's restaurant and drive through facility; (b)the amendments are "minor" having regard to the cumulative or overall effect of the amendments (which cumulatively were minor) in the context and the location of the proposed development; (c)significant re-assessment of the development application was not required as a result of the amendments; (d)the amendments did not involve a change in concept; (e)the amendments did not raise any new issues; (f)the amendments are "minor" as a matter of fact and degree not just because they narrowed the issues in dispute and responded to issues raised by Council; (g)the amendments are "minor" as a matter of fact and degree; (h)the amendments did not necessitate significant further work by the consent authority.

Rule 3.7 91In response to the respondent's alternative submission that costs should be awarded pursuant to r 3.7, Mr Galasso submits (par 63) that the Court "must not" order costs in Class 1, unless it is fair and reasonable in the circumstances. Although acknowledging that r 3.7(3) ([13] above) is not exhaustive, he submits that none of the circumstances set out there apply to the present matter. 92Mr Galasso argues that the applicant could have declined to make the amendments outlined by Brown C, and instead lodged a fresh DA, which would have resulted in "significant and otherwise unnecessary resource expenditure" (par 68). 93He also submits that a number of alternative designs had been considered at an early stage, and that the applicant was not acting unreasonably in pursuing its preferred scheme (par 71). 94Although acknowledging similarities between the two designs, Mr Galasso distinguishes the design identified in Exhibit 13 from the approved design, noting (at par 72) that the early concept: (1) placed the drive-through along the Parramatta Road frontage, rather than the northern boundary; (2) placed car parking along the northern boundary; (3) "sited the footprint of the building in a materially different location"; and (4) showed no screening along the frontage. 95Mr Galasso also referred the Court to Biscoe J's comments in Stanton (at [15]-[19]), and submits (par 73) that the principles stated therein "make it plain that amendment in response to interim findings is of itself insufficient to justify a costs order". 96As the amendments "facilitated the just, quick and cheap resolution of the real issues in dispute" (par 68), it would be unfair for the applicant to be financially penalised for the amendments made, by ordering costs, and therefore, the respondent's motion should be dismissed, with costs.

Section 97B 97Mr McEwen SC submits that the applicant was allowed to amend its DA in a more than minor way and, therefore, the respondent is entitled to an order for costs incurred by it in respect of the "assessment of, and proceedings relating to, the original development application the subject of the appeal" (s 97B(2) in its unamended form - see above at [9]). 98Mr McEwen submits that s 97B applies if (1) "the Court, on appeal, allows the Applicant to file an amended" DA, and (2) "the amendment is not minor" (subs, par 18), and that, once the section is found to apply, the Court has no discretion - it must make an order for costs. He submits that s 97B "is not concerned with the genesis of the amendments" (par 20), and is engaged where an applicant in a s 97 appeal is allowed, by the Court, to file an amended application. 99Mr McEwen argues that it is plain from the Commissioner's judgment (pars [60], [63] and [74]), that the Court allowed the applicant to file an amended DA, which became the subject of this Class 1 appeal, and that it does not matter whether the amendments were made of the applicant's own accord, or as a result of the Commissioner's interim findings. The applicant sought to rely upon amended plans, which, although made in response to the interim judgment, were, nonetheless, done at the election of the applicant (reply subs pars 12-13). 100Mr McEwen argues that there was no direction requiring the applicant to make the amendments, but that the applicant was instead, 'allowed' to amend its application (reply par 9). 101Mr McEwen submits that the legislative intent is to "discourage, by the imposition of a costs penalty, non-minor amendments made after the commencement of Court proceedings when the opportunity for consideration by the community and Council is far more restricted" (reply pars 4-6). 102He relies on Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner of Taxation [1981] HCA 26, 147 CLR 297 at 320-321, and s 33 of the Interpretation Act, to argue that a purposive construction of the section should be adopted. 103Mr McEwen argues that in the context of s 97B, the word 'allows' should be construed broadly to mean 'permits'. Similarly, 'file' should not be given an unduly restricted meaning, and the literal interpretation of 'original development application' should not be adopted. 104Mr McEwen notes the absence of any reference in the second reading speech to "an essential requirement" for the "formal filing" of an amendment. The applicant tendered the amendments, and they were accepted and marked, and so became part of the Court file. He submits (reply par 15) that "they were thereby filed. Any other construction should be rejected as it would lead to an artificial distinction and an unintended and unreasonable result". 105He also argues (reply par 9) that "an amendment, in the context of class 1 proceedings, is properly to be seen as an indulgence to an applicant", and notes that par 7 of the Practice Note for Class 1 requires any amendments to be by leave of the Court. He argues (reply par 21) that the term "original development application" should be interpreted to "mean the form of the development application immediately prior to its amendment". 106Mr McEwen rejects the applicant's submission that s 97B can be used only once, and submits (reply par 23) that any order for costs arising from a second or subsequent amendment can be crafted to avoid any duplication of costs resulting from an earlier costs order (see Groeneveld at [35]). In support, he draws attention to the approach taken in Groeneveld (at [34]) - which I record at [66] above) that: ... what should be considered to be the "original development application" in s 97B(2)... was accepted to be the development application as amended by leave of Registrar Dixon on 12 November 2008. 107Mr McEwen submits that as, in that case, an amended application was accepted to constitute the "original application", a similar approach should be taken here. 108In regard to the public information session held by the Council after the receipt of the amended plans, the respondent submits that such consultation is intended to take place prior to proceedings being commenced, and cannot be relied upon as a basis for denying the application of s 97B (reply par 19).

109As to whether the amendments are considered to be "minor", a term not defined in the legislation, the respondent acknowledges that it is a question of fact and degree, and submits that the word should take its ordinary meaning. The assessment of whether an amendment is "minor" must also have regard to the context of the development and its location. 110McEwen relies on the "accumulative effect" of the amendments, but focuses on the alterations to the building's external appearance, arguing that "there were architectural changes to every façade which altered its appearance it's fundamental response to it's (sic) heritage context. The language of the design changed from curvilinear to rectilinear". (see Tp18 L50 - p19 L7). Individually the amendments could not be seen as "minor", when the plans are compared. 111The amendments changed the architectural concept, and converted the application from one that the Court would have refused, to one it approved. "The earlier design would have been 'fatal' but for the amendments which emulated the sketches in" Exhibit 13 (par 25. See also Commissioner's comments at pars [25], [26] and [60]). Significant and costly reassessment was required, as evidenced by the level of detail in the supplementary statements of evidence by the parties.

Rule 3.7 112In the alternative, the respondent seeks, pursuant to r 3.7 of the Court Rules (above at [13]), an order covering the costs of the proceedings incurred after the Commissioner's interim findings (par 37). The rule focuses on making a costs order which is "fair and reasonable in the circumstances". 113The respondent summarises the relevant circumstances justifying such an order, as follows (par 32): ...the Respondent was put to the additional cost of the substantial reassessment of the building design, the acoustic acceptability of the drive-through facility and the amended signage. The reassessment involved input from the experts and legal representatives. A meeting was convened to brief residents upon the amendments and a further Court hearing, with attendance by experts and legal representatives on 20 May 2011 took place. This resulted to additional changes to colours and finishes of the building. These costs were incurred after the merits hearing was concluded and in circumstances where the ultimate design reflected an architectural response which had been developed prior to the commencement of the proceedings in discussions between Mr Moore and the Applicant's then architect, Mr Cserhalmi, but rejected by the Applicant in the original hearing on 13 and 15 December 2010. 114Mr McEwen rejects (reply pars 27-8) the applicant's submission that it should not be penalised by a costs order under r 3.7 for making amendments that were responsive to the interim findings, and facilitated "the just, quick and cheap resolution of the dispute". The applicant bears the onus of establishing that its amendment promotes that statutory objective. (See Practice Note for Class 1 development appeals, par 29(b)). 115Mr McEwen acknowledges that mere "amber light" amendments do not of themselves justify an order for costs, but refers the Court to Marinkovic at [22], [24-26] and [29]; Stanton at [18]; Millennium Projects Pty Ltd v Baulkham Hills Shire Council [2004] NSWLEC 761 ('Millennium Projects') at [9]; Hakim v Canada Bay City Council [2008] NSWLEC 118. 116In Millennium Projects, McClellan ChJ said (at [9]): In combination with the use of court experts, the most efficient outcome will be to allow amended plans. However, it is also the case that when amended plans are allowed to be filed, councils may suffer by reason of a need to assess the amended application, with the costs, which have already been incurred in assessing the original application being lost. Those costs may extend to the cost of its lawyers, cost of experts and also the costs of advertisement of the application. The Court has said on a number of occasions that the price which an applicant can expect to pay, in circumstances where it seeks to lodge an amended application, will be an order for the costs thrown away by reason of the amendment. In most cases, the Court is aware that the parties reach agreement about those costs, both as to the need for the applicant to pay them and also as to quantum, however that has not occurred in the present case. 117Mr McEwen, therefore, submits (par 36) that: ... where such amendment leads to costs thrown away (or the incurring of additional costs) there is a proper basis for the making of a compensatory order. 118He submits that the applicant acted unreasonably when it rejected the design advice which had been developed in the discussions between Mr Moore and Mr Cserhalmi, prior to the commencement of the proceedings, but which it ultimately adopted after the Court's interim findings were published (see pars 32-33).

Consideration 119Overall, I am persuaded that Mr Galasso's submissions are to be preferred, and should be accepted.

The Section 97B claim 120Section 97B provides for the imposition of costs in circumstances where the applicant (in an appeal under s 97) is granted permission to rely on a DA, which has been amended after the appeal has commenced. 121An unduly restrictive interpretation of the section cannot be justified, and I do not think that anything turns upon whether the amendment(s) relied upon is formally filed with the Court, or comes before it as an exhibit. 122Nor do I accept that section 97B does not apply, merely because the amendments relied upon are 'responsive' to comments made by the Court, and/or facilitate the 'just, quick and cheap' resolution of the proceedings. Whether amendments are responsive to something said by the Court, or initiated purely from the applicant's own accord, is not relevant, unless it can be shown that the applicant was truly directed by the Court to amend its DA. 123Although it is not strictly necessary for me to consider it in this case, for the sake of completeness, I also note that I accept Mr McEwen's submission that the 'original development application' should be interpreted to mean the DA which existed immediately prior to its amendment. 124The applicant was clearly directed by the Court to reconsider its proposal, and amend its plans, so that they would be more in line with the designs provided in material in evidence before the Commissioner (Exhibit 13). I find, therefore, that s 97B does not apply. 125In the present case the amendments focussed on the appearance of the external building, and there was no change in the development concept, nor were there any new issues arising out of the amended plans. 126The amendments did, indeed, require reassessment by the Council and its experts, and concerned matters at the heart of the dispute (final judgment at [72]), but the amended DA was not significantly different from the DA which was the subject of the Commissioner's interim findings, and it largely adopted the evidence of the Council's expert. 127Applying the principles outlined by Pepper J in Futurespace, I am of the opinion that the amendments ought to be considered "minor" in the context of s 97B.

The Rule 3.7 claim 128Merely making amendments is not generally enough to justify a departure from the presumption against an order for costs in Class 1 proceedings: (Stanton ([76]f above). 129Although there must be a limit upon the type and number of amendments, which ought to be considered reasonable by the Court, here the two earlier amendments made have already been the subject of costs orders. 130However, although the final amendments closely resemble the plans provided in Exhibit 13, I accept the applicant's submission that "a number of alternatives had been considered at an early stage, and that the applicant was not acting unreasonably in pursuing its preferred scheme" (see above at [93]). 131Accordingly, I do not think it is appropriate in the circumstances of this case to order the applicant to pay the respondent's costs of the proceedings, from and including 28 February 2011.

Costs of the motion 132The Council has been totally unsuccessful on its motion, but it raised serious questions, the answers to which were not free of doubt. 133The applicant sought an order for its costs on the motion, and has now asked to be further heard on that question.

134The formal orders of the Court are as follows: (1) The respondent's notice of motion is dismissed. (2) The parties are to approach the Registrar within seven days to obtain a date for a further hearing on the costs of the motion. (3) All exhibits are retained pending the court's decision on the costs of the motion. 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. Decision last updated: 14 December 2012