Nanevski Developments Pty Ltd v Rockdale City Council

CASES CITED: Futurespace Pty Ltd v Ku-ring-gai Council [2009] 169 LGERA 45, NSWLEC 153

APPLICANT Mr D Briggs (solicitor) SOLICITOR LEGAL REPRESENTATIVES: D G Briggs and Associates RESPONDENT Mr J Reilly (solicitor) SOLICITOR HWL Ebsworth Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10721 of 2009 Nanevski Developments Pty Ltd v Rockdale City Council

JUDGMENT 1 REGISTRAR: The applicant in these proceedings has filed a notice of motion, dated 1 December 2009, seeking leave to rely on amended plans. The respondent, Rockdale City Council, consents to such leave being granted. As a result, the application of s 97B of the Environmental Planning and Assessment Act 1979 arises for consideration. 2 The proceedings relate to a development application made by the applicant seeking approval for the demolition of two existing dwelling houses and the construction of a three storey building with basement car parking for use as a residential care facility. The proposed amendments to the plans are helpfully set out in detail in the affidavit of Mr Briggs sworn 1 December 2009. Other than the proposed extension of the basement floor plate and the provision for ambulance parking, the amendments propose changes to the internal layout of the building and can be summarised as follows: o Changes to the number of car spaces, including disabled car spaces and the location of the loading zone; o Changes to the orientation of the lift; o Deletion of some resident rooms and changes to the other rooms, including changes to room size, number of beds, and the location of access to bathrooms; o Relocation of areas and rooms, and creation of additional areas and rooms, including maintenance room, store rooms, pan rooms, kiosk area, nursing station and treatment room; and o Changes to the layout of bathrooms, the laundry, kitchen and lounge area. 3 Section 97B provides 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 were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal. (3) … 4 Section 97B creates an obligation on the Court to make a costs order in favour of the respondent in circumstances where the amendments are other than a "minor amendment". In my view, by virtue of the wording of s 97B(1), the Court is required to make a costs order in accordance with s 97B(2) unless the applicant establishes that the amendments are a "minor amendment". 5 In Futurespace Pty Ltd v Ku-ring-gai Council [2009] 169 LGERA 45, NSWLEC 153, Pepper J helpfully set out the principles relevant to the Court's consideration of whether an amendment is a minor amendment. Her Honour set out at [42]:

…the following principles that may, at a minimum, assist in determining whether the amendments are "minor" for the purpose of s 97B of the EPAA: (a) first, the question of what is 'minor' is one of fact and degree ( Cachia at [25] and the first Groeneveld at [14]); (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 ( Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]); (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 (the first Groeneveld at [15] and [19]); (d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]); (e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]); (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 (the first Groeneveld at [16] and the second Groeneveld at [32]); 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 (the first Groeneveld at [17]).

6 The applicant submits that the amendments are minor on a number of grounds. Firstly, the amendments do not introduce anything new to the development or the scheme of the development. Secondly, the amendments relate only to the internal building layout and other than the basement floor plate extension, do not make any changes to the external outline of the building. Thirdly, the amendments flow from the advice of Mr Stan Manning, an aged care consultant. That advice relates to issues relevant to Commonwealth aged care accreditation. The applicant submits that given that such issues are beyond the scope of consideration by the consent authority and the Court, the amendments concerning those issues are minor. Fourthly, the applicant says that the amendments simply replicate the concept and scheme of the earlier plans, and therefore would fall within the discretion of the Principal Certifying Authority if a Construction Certificate had issued in relation to the earlier plans. Further, in addressing the question of the 'fact and degree' of the amendment, the applicant says that whilst there are a number of changes, each of those changes are "de minimus" and any assessment of those changes is nominal. 7 The respondent submits that the amendments cannot be considered minor in circumstances where they result in a reduction in the number of beds and an increase in the number of staff. Further, the respondent submits that the Council is required to re-assess the impact of the extension of the basement and of the change in the loading bay, the ambulance parking and the consequential changes in the landscaping. The respondent submits that having regard to the number of amendments and the changes that result, there is some work required of the respondent in order to understand the nature and impact of the amendments. The respondent also says it will need to re-consider the issues raised in the proceedings. On that basis, whilst the plans do not require re-notification, the respondent submits the amendments cannot be a 'minor amendment'. 8 In my view, the basis upon which the changes were made is not a relevant consideration in relation to whether or not an amendment is minor pursuant to s 97B. That the amendments were made on the basis of issues raised in relation to obtaining accreditation for the facility, rather than issues that fall within the consideration of a consent authority, cannot be determinative in relation to the question of whether the precise amendments are minor. Similarly, I am not satisfied that the question of what falls within the discretion of a Principal Certifying Authority that issued a Construction Certificate is necessarily relevant in the Court's determination as to whether the amendment is minor.

9 An issue was also raised by the respondent in relation to whether I would accept the opinion of a town planner that the amendments are minor. The relevant town planner is Mr Briggs, who is also the applicant's solicitor and appeared on behalf of the applicant on this application. An expert opinion in relation to whether an amendment is minor is helpful and assists the Court in making a determination concerning the amendment. However, amendments that one expert might consider "minor" on their assessment may not necessarily be "minor" from the perspective of an expert in another area of expertise. Therefore, in making a determination in relation to whether an amendment is minor, it is a matter for the Court to consider what weight is placed on an expert opinion to that effect.

10 In these proceedings, I accept that individual changes made to the internal layout relate only to mere detail. However, the cumulative effect of those amendments results in changes in the number of car spaces, the number and nature of facilities and amenities provided for residents, the number of beds for residents, the number of staff and the facilities provided for the staff. Whilst they may not result in any significant re-assessment by the Council's town planner in relation to the compliance of the proposed development with planning controls, I nonetheless accept that these changes will require the Council to assess the plans and re-consider aspects of the development for which the applicant seeks approval. The cumulative nature and extent of those changes therefore renders them something other than a minor amendment. Simply because the amendments do not change the building footprint or the externality of the building does not make them a "minor amendment".

11 Further, I cannot accept that the extension of the basement floor plate to increase the size of the car park is a minor amendment. It results in an increase in extent of the excavation required, and will have an impact on landscaping and streetscape. It cannot be said that such an amendment is minor.

12 I have therefore found that by virtue of firstly the cumulative effect of the amendments to the internal layout of the proposed building, and secondly the extension of the basement floor plate, the amendments cannot be described as a "minor amendment" pursuant to s 97B. Accordingly, I make the following orders: 1. Leave be granted to the applicant to rely on amended plans, in accordance with order 1 of the notice of motion filed 1 December 2009; 2. That the applicant pay the respondent's costs in accordance with s 97B(2) of the Environmental Planning and Assessment Act 1979 .

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