Palm Lake Works Pty Ltd v Tweed Shire Council - [2024] NSWLEC 1461 - NSWLEC 2024 case summary — Zoe

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Palm Lake Works Pty Ltd v Tweed Shire Council

[2024] NSWLEC 1461

Land and Environment Court (NSW)|2024-06-26

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2024-06-26

Catchwords

[2010] NSWLEC 70 Barca v Wollondilly Shire Council (2014) 205 LGERA 454
[2014] NSWLEC 118 Connery v Manly Council (1999) 105 LGERA 451
[1999] NSWLEC 284 Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 Gibson v Mosman Municipal Council (2001) 114 LGERA 416
[2001] NSWLEC 134 Goldberg v Waverley Council (2007) 156 LGERA 27

Source

Original judgment source is linked above.

Catchwords

[2010] NSWLEC 70 Barca v Wollondilly Shire Council (2014) 205 LGERA 454[2014] NSWLEC 118 Connery v Manly Council (1999) 105 LGERA 451[1999] NSWLEC 284 Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 Gibson v Mosman Municipal Council (2001) 114 LGERA 416[2001] NSWLEC 134 Goldberg v Waverley Council (2007) 156 LGERA 27[2007] NSWLEC 259 Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) (2013) 197 LGERA 238[2013] NSWLEC 146 Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292

Judgment (25 paragraphs)

[1]

JUDGMENT

The Applicant, by Notice of Motion filed 18 June 2024, seeks leave to amend the development application and amend the Class 1 application form to include additional and amended orders (the Motion).
The Respondent opposes the Motion on the basis that the amendments to the development are outside the scope of cl 55 of the Environmental Planning and Assessment Regulation 2000 (the Regulation). Further, the Respondent opposes the additional orders sought to the Class 1 application under s 138 of the Roads Act 1993 (Roads Act) and cl 31(3) of the Tweed Local Environmental Plan 2000 (Tweed LEP).

[3]

Legal framework

It was common ground between the parties at the hearing of the Motion that the power to amend the DA is contained in cl 55 of the Regulation and the power of the consent authority may be exercised by the Court on appeal pursuant to s 39(2) of the Land and Environment Court Act 1979 (the Court Act). Clause 55 of the Regulation provides: (1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined, by lodging the amendment or variation on the NSW planning portal. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must include particulars sufficient to indicate the nature of the changed development. …
Section 39(2) of the Court Act provides that: (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
The principles for applying cl 55 of the Regulation are not in dispute between the parties, the Applicant relied on Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155 (Radray) and Ambly Holdings Pty Limited v City of Sydney [2016] NSWLEC 38 (Ambly). A broad approach to both the scope and application of cl 55 is appropriate, as observed in Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 at [40] (observed in Radray at [7]): "[7] … "It is my view that Regulation 55 is beneficial and facultative and intended to facilitate the making of amendments on two accounts. Firstly to enable the applicant for consent to respond to any issues identified by the council or objectors and secondly to encourage a consent authority to solicit a better outcome. A broad approach to the application of Regulation 55 is therefore appropriate.""
An amendment or variation under cl 55 may result in change to the proposed development if the essence of the development remains the same, but the Court has no jurisdiction to entertain an original application (Radray at [17]). A variation under cl 55 may extend to changes to the nature of the development provided its overall essence is the same (Ambly at [9]).
A variation under cl 55 may also extend to accepting on appeal an EIS without changing the essence of the development, and setting a timetable for the Respondent to publicly exhibit the EIS: Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) (2013) 197 LGERA 238; [2013] NSWLEC 146 at [70] and Barca v Wollondilly Shire Council (2014) 205 LGERA 454; [2014] NSWLEC 118 at [102].
The power to amend a Class 1 application form is in s 64 of the Civil Procedure Act 2005, which gives the Court discretion at any stage of the proceedings to order a Court document be amended subject to the dictates of justice at s 64(2): (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.
The Court has found on numerous occasions that it has jurisdiction to grant consent to works pursuant to s 138 of the Roads Act, to exercise the function of a council as roads authority under s 39(2) of the Court Act when determining a development appeal: Connery v Manly Council (1999) 105 LGERA 451; [1999] NSWLEC 284; Gibson v Mosman Municipal Council (2001) 114 LGERA 416; [2001] NSWLEC 134 (Gibson); Goldberg v Waverley Council (2007) 156 LGERA 27; [2007] NSWLEC 259 (Goldberg). A consent under s 138 may be granted on the application of any person or on the roads authority's initiative: s 139(1)(a) of the Roads Act.
Clause 31(3) of the Tweed LEP provides that consent must not be granted to development on certain land adjoining water bodies, within such distance as is determined by the consent authority of the mean high-water mark (or top of the bank or shore) unless it is satisfied as to the matters set out in the clause.

[4]

Evidence

The Motion seeks leave to rely on amended plans and reports including an EIS. In response to the SEARs, the amended application includes a surface and ground water monitoring plan, hydraulic assessment, water monitoring report, socio economic impact assessment, community engagement outcomes, landscape intent, arboricultural impact assessment, and traffic assessment. Amended civil engineering plans have been prepared as well as amended stormwater management plans, flood impact assessment, biodiversity development assessment report, amended bushfire assessment and biodiversity management plan.
The affidavit of Allyssa May Khoupongsy affirmed 18 June 2024 in support of the Motion provides a detailed explanation of the nature of the amendments and schedule of amendments. I summarise the key amendments to the proposed development as follows: 1. The proposed subdivision has changed from Torrens title to Community title including the creation of a community association and Lot 1 being association property. This lot provides for the asset protection zone and mosquito/biting midge buffer area which is to be maintained in accordance with the community management statement by the community association. 2. The access road has changed from a public road (dedicated to the Respondent) to an open accessway private road within the association property lot. The road location has been slightly realigned and changed in width. 3. The existing residential lot has increased in size and includes an increased asset protection buffer. 4. The drainage reserve has changed from being dedicated to the Respondent to drainage within the association property. 5. The two stormwater basins have been deleted and replaced with unsealed pipeless bioretention systems. 6. The cut and fill across the site has been reduced, overall fill has been reduced by about 32.8%. 7. The lot layout has been realigned slightly. 8. Casual open space is proposed within the association property. 9. The works within Creek Street and Tweed Coast Road road reserves are foreshadowed works proposed to be subject to a consent under s 138 of the Roads Act, and are depicted in the amended plans for assessment purposes.
Ms Khoupongsy's affidavit outlines advice from the Applicant's town planner Mr Darren Gibson on how the proposed amendments seek to address the contentions raised by the Respondent, and result in a reduced environmental impact and improved community outcome.
The Motion also seeks leave to amend the Class 1 application form pursuant to s 64 of the Civil Procedure Act to seek additional and amended orders that the Court: 1. grant consent under s 138 of the Roads Act to the roadworks and water supply works within the Creek Street and Tweed Coast Road road reserves; 2. determine the distance from the mean high-water mark (or where there is none the top of bank or shore) under clause 31(3) of the Tweed LEP; and 3. grant consent to an amended description of development being "civil works, a stormwater management system, roads, an environmental facility and subdivision".
The consequential orders sought in the Motion include exhibition of the EIS under the Environmental Planning and Assessment Act 1979 (EP&A Act) and the Regulation, and exchange of amended contentions (and amended reply).
The Respondent did not file any evidence and relied on oral submissions.

[5]

Is the power to amend available under cl 55?

The first question to be answered is whether the development as amended is an amendment or variation of the DA, recognising that the amendment or variation may result in changes to the DA but that the Court has no jurisdiction to entertain an original application (Radray at [16]).
The Applicant submits that the physical changes to the development are unexceptional and limited to reconfigurations to the design, size or location of the works, which are well within the scope of cl 55. It says the DA still proposes various civil works and associated infrastructure with generally the same subdivision pattern, and its 'essence' remains unchanged. The Applicant accepts that the introduction of Community title is a change in the nature of the development, however, applying Ambly says that a variation can include a change to the nature of the development (in this case the nature of the proposed subdivision). The Applicant relied on Australian Enterprise Holdings Pty Ltd t-as AEH Group v Camden Council (2010) 173 LGERA 226; [2010] NSWLEC 70 (AEH) in which the Court found that the introduction of Community title to a development for subdivision did not disqualify it from the scope of cl 55: [38]-[46].
The Respondent submits that the amendments to the application and amended documents render the development a new development application. It says the combination of changes to the subdivision and road design, changes to the traffic and civil plans, redesign of the stormwater system to bioretention system, reduced cut and fill, additional open space, significant changes to asset protection zone buffers, and additional assessment reports would require an assessment of the DA afresh. The Respondent made submissions that they would likely need to retain additional experts, being traffic and bushfire experts, to assess the amended application. It says the change in the type of subdivision to Community title changes the way the development will operate and is characterised (including private roads and open space within the association property), and necessitates a different level of assessment.
I consider that the nature and extent of the amendments to the development result in a changed development but not to the extent that the development consists of an original application. I have considered the changes to the development in the context of the development as currently proposed, and am satisfied as a matter of fact and degree that those changes do not convert the DA into an original application. The changes proposed to the civil works footprint and the environmental footprint are not significant in the overall scheme of the development, and the civil works and residential lots are in about the same position. The introduction of Community title is a change to the nature of the subdivision, but I accept that the introduction of that type of subdivision alone does not repel the application of cl 55, as the Court found in AEH at [38]-[41]. The internal access road remains in a slightly varied location and serves the same purpose of providing open access to the residential lots whether it is ultimately a public road or on association property. Similarly, the drainage reserve, open space and asset protection zones as slightly reconfigured do not change their essence by being on association property.
The DA as amended retains its essence as development for the purpose of civil works, a stormwater management system, roads, an environmental facility and subdivision. I accept that the amended application will require reassessment of amended and new material, but that post-amendment process does not disqualify the amendment from cl 55 of the Regulation.
I am satisfied that the proposed amendment or variation is within the scope of cl 55.

[8]

Section 138 of the Roads Act

The Applicant seeks to amend its Class 1 application under s 64 of the Civil Procedure Act to add an order that the Court exercise the functions of the Respondent as roads authority under s 39(2) of the Court Act to grant consent to roadworks and water supply works within Creek Street and Tweed Coast Road reserves under s 138(1) of the Roads Act.
The Applicant relies on the line of authorities that the Court has jurisdiction to grant consent to works pursuant to s 138(1) of the Roads Act when determining a development appeal (at paragraph [12] above). The DA currently identifies works within the road reserves, as does the amended application. The Applicant says the evidence base for the DA as amended and the Road Act consent is identical, and the Court will be assessing the environmental impacts of the roadworks and water supply works as part of the appeal. It says the question of whether the Court has the power to grant the s 138(1) consent is a matter for the presiding commissioner before determining the development appeal. It says although there is no legal requirement for an application to be made under s 138(1) as the Respondent and therefore the Court under s 39(2) has the authority to give consent even if not applied for, the Applicant has filled out the Respondent's form for s 138(1) consent and seeks to include it as evidence before the Court. It says it is necessary to ensure all remedies and matters in controversy are finally determined by the Court, and to avoid a multiplicity of proceedings.
The Respondent accepts the authorities that the Court in certain circumstances has the power to grant consent under s 138(1) but submits the Court does not have the power in this case. It says the DA did not seek consent under s 138(1) and an application does not currently exist for the Court to consider. It says the Applicant cannot now introduce an order for s 138(1) consent when such an application was never put to the Respondent and has not previously been considered by the Respondent.
I consider that the amendment to the Class 1 application to seek an order for consent under s 138(1) of the Roads Act is within the scope of power under s 64 of the Civil Procedure Act. The Court may exercise the power under s 138(1) on determination of the appeal even when it is not applied for of its own initiative: s 139(1)(a) of the Roads Act. There is no express requirement for a prior application to be made for s 138(1) to apply. In Gibson for instance, the applicant had not made a separate application for consent under s 138 of the Roads Act and the Court found that the prospect of the Court exercising the functions of council as roads authority should not be precluded: at [5] and [52]. It is a matter for the presiding commissioner whether such an order is ultimately made, having regard to the nexus between the 'matter' the subject of the appeal and the discretion or function sought to be exercised under s 39(2) of the Court Act (Gibson at [33] and Goldberg at [51]-[53]) however these are not questions to be answered on this Motion.
At this preliminary stage of the appeal, I am not prepared to preclude the Applicant from seeking an order that the Court exercise the power under s 138(1) of the Roads Act. Amending the orders sought makes it clear that the Applicant is seeking that the Court exercise that power. Section 64 allows amendment to a court document at any stage of the proceedings, and I consider amending at this stage does not prejudice the Respondent, noting no hearing dates have been set and it will have an opportunity to amend its contentions. Further, I consider that it is consistent with the dictates of justice and avoiding a multiplicity of proceedings, to give the Applicant an opportunity to seek that the Court exercise the power under s 138(1) to avoid the potential need for further proceedings.

[10]

Orders

I am satisfied to grant the Motion for the reasons outlined above. The Applicant is granted leave to rely on the amended plans and documents listed in the Schedule to the Motion, which are contained within Exhibit A before me.
I consider that the amendments are more than minor and so I make the usual order for the Applicant to pay the Respondent's costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979.
The Applicant is also granted leave to rely on an amended Class 1 application form, which is to be filed and served within 7 days being 7 August 2024.
I list the matter for further directions in the regional telephone list on 12 August 2024 to allow the parties time to prepare consequential orders taking into consideration the date for commencement of public exhibition of the EIS.
The Court orders: 1. The Notice of Motion filed 18 June 2024 is granted. 2. The Applicant is granted leave, pursuant to section 64 of the Civil Procedure Act 2005, to file and serve the amended Class 1 application set out in tab 35 of Exhibit AMK-1 referred to in the affidavit of Allyssa May Khoupongsy affirmed 18 June 2024, by 7 August 2024. 3. The Court pursuant to section 39(2) of the Land and Environment Court Act 1979, exercising the function of Tweed Shire Council as consent authority under clause 55(1) of the Environmental Planning and Assessment Regulation 2000 (the Regulation) approves the application to amend development application DA20/0386 made on 18 June 2024 to rely on the documents and plans listed in Schedule 1 of the Notice of Motion. 4. The Court grants leave for the Applicant to rely on the documents listed in Schedule 2 of the Notice of Motion as evidence in the proceedings. 5. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent, as agreed or assessed. 6. The Respondent is to: 1. publish a public notice as required by clause 77 of the Regulation; 2. publicly exhibit the environmental impact statement for at least 28 days as required by section 2.22 and Part 1 of Schedule 1 of the Environmental Planning and Assessment Act 1979 (the EP&A Act); 3. forward all submissions received in response to the public exhibition to the Secretary of the Department of Planning, Housing and Infrastructure as required by clause 81 of the Regulation; and 4. notify any objector of the proceedings as required by section 8.12 of the EP&A Act. 1. The Applicant is to publish a public notice as required by clause 78 of the Regulation. 2. The matter is listed for telephone directions hearing on 12 August 2024. I certify that this and the preceding 12 pages are a true copy of my reasons for judgment.

[16]

The first question to be answered is whether the development as amended is an amendment or variation of the DA, recognising that the amendment or variation may result in changes to the DA but that the Court has no jurisdiction to entertain an original application (Radray at [16]).
The Applicant submits that the physical changes to the development are unexceptional and limited to reconfigurations to the design, size or location of the works, which are well within the scope of cl 55. It says the DA still proposes various civil works and associated infrastructure with generally the same subdivision pattern, and its 'essence' remains unchanged. The Applicant accepts that the introduction of Community title is a change in the nature of the development, however, applying Ambly says that a variation can include a change to the nature of the development (in this case the nature of the proposed subdivision). The Applicant relied on Australian Enterprise Holdings Pty Ltd t-as AEH Group v Camden Council (2010) 173 LGERA 226; [2010] NSWLEC 70 (AEH) in which the Court found that the introduction of Community title to a development for subdivision did not disqualify it from the scope of cl 55: [38]-[46].
The Respondent submits that the amendments to the application and amended documents render the development a new development application. It says the combination of changes to the subdivision and road design, changes to the traffic and civil plans, redesign of the stormwater system to bioretention system, reduced cut and fill, additional open space, significant changes to asset protection zone buffers, and additional assessment reports would require an assessment of the DA afresh. The Respondent made submissions that they would likely need to retain additional experts, being traffic and bushfire experts, to assess the amended application. It says the change in the type of subdivision to Community title changes the way the development will operate and is characterised (including private roads and open space within the association property), and necessitates a different level of assessment.
I consider that the nature and extent of the amendments to the development result in a changed development but not to the extent that the development consists of an original application. I have considered the changes to the development in the context of the development as currently proposed, and am satisfied as a matter of fact and degree that those changes do not convert the DA into an original application. The changes proposed to the civil works footprint and the environmental footprint are not significant in the overall scheme of the development, and the civil works and residential lots are in about the same position. The introduction of Community title is a change to the nature of the subdivision, but I accept that the introduction of that type of subdivision alone does not repel the application of cl 55, as the Court found in AEH at [38]-[41]. The internal access road remains in a slightly varied location and serves the same purpose of providing open access to the residential lots whether it is ultimately a public road or on association property. Similarly, the drainage reserve, open space and asset protection zones as slightly reconfigured do not change their essence by being on association property.
The DA as amended retains its essence as development for the purpose of civil works, a stormwater management system, roads, an environmental facility and subdivision. I accept that the amended application will require reassessment of amended and new material, but that post-amendment process does not disqualify the amendment from cl 55 of the Regulation.
I am satisfied that the proposed amendment or variation is within the scope of cl 55.

[21]

The Applicant seeks to amend its Class 1 application under s 64 of the Civil Procedure Act to add an order that the Court exercise the functions of the Respondent as roads authority under s 39(2) of the Court Act to grant consent to roadworks and water supply works within Creek Street and Tweed Coast Road reserves under s 138(1) of the Roads Act.
The Applicant relies on the line of authorities that the Court has jurisdiction to grant consent to works pursuant to s 138(1) of the Roads Act when determining a development appeal (at paragraph [12 ] above). The DA currently identifies works within the road reserves, as does the amended application. The Applicant says the evidence base for the DA as amended and the Road Act consent is identical, and the Court will be assessing the environmental impacts of the roadworks and water supply works as part of the appeal. It says the question of whether the Court has the power to grant the s 138(1) consent is a matter for the presiding commissioner before determining the development appeal. It says although there is no legal requirement for an application to be made under s 138(1) as the Respondent and therefore the Court under s 39(2) has the authority to give consent even if not applied for, the Applicant has filled out the Respondent's form for s 138(1) consent and seeks to include it as evidence before the Court. It says it is necessary to ensure all remedies and matters in controversy are finally determined by the Court, and to avoid a multiplicity of proceedings.
The Respondent accepts the authorities that the Court in certain circumstances has the power to grant consent under s 138(1) but submits the Court does not have the power in this case. It says the DA did not seek consent under s 138(1) and an application does not currently exist for the Court to consider. It says the Applicant cannot now introduce an order for s 138(1) consent when such an application was never put to the Respondent and has not previously been considered by the Respondent.
I consider that the amendment to the Class 1 application to seek an order for consent under s 138(1) of the Roads Act is within the scope of power under s 64 of the Civil Procedure Act. The Court may exercise the power under s 138(1) on determination of the appeal even when it is not applied for of its own initiative: s 139(1)(a) of the Roads Act. There is no express requirement for a prior application to be made for s 138(1) to apply. In Gibson for instance, the applicant had not made a separate application for consent under s 138 of the Roads Act and the Court found that the prospect of the Court exercising the functions of council as roads authority should not be precluded: at [5] and [52]. It is a matter for the presiding commissioner whether such an order is ultimately made, having regard to the nexus between the 'matter' the subject of the appeal and the discretion or function sought to be exercised under s 39(2) of the Court Act (Gibson at [33] and Goldberg at [51]-[53]) however these are not questions to be answered on this Motion.
At this preliminary stage of the appeal, I am not prepared to preclude the Applicant from seeking an order that the Court exercise the power under s 138(1) of the Roads Act. Amending the orders sought makes it clear that the Applicant is seeking that the Court exercise that power. Section 64 allows amendment to a court document at any stage of the proceedings, and I consider amending at this stage does not prejudice the Respondent, noting no hearing dates have been set and it will have an opportunity to amend its contentions. Further, I consider that it is consistent with the dictates of justice and avoiding a multiplicity of proceedings, to give the Applicant an opportunity to seek that the Court exercise the power under s 138(1) to avoid the potential need for further proceedings.

Palm Lake Works Pty Ltd v Tweed Shire Council

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