21 On 4 December 2009 the Council filed a Notice of Motion to vacate the hearing fixed for 21 December 2009, primarily on the basis that the amended application had not been notified in accordance with the Court's directions. The Council relied on an affidavit of Ms Catherine Morton sworn and filed on 4 December 2009, which annexed correspondence between the parties. The applicant opposed the application, and relied on an affidavit of Mr Gordon Hartley sworn and filed on 7 December 2009.
22 The correspondence between the parties concerning notification of the amended plans provided by the applicant to the Council on 13 November 2009 is summarised in paragraphs 4 to 6 of the decision of Acting Registrar Gray in Pan Pacific Property Group Pty Ltd v Waverley Council [2010] NSWLEC 1001. At the hearing of the notice of motion on 7 December 2009 the Council was represented by Mr Brockwell, who submitted that the amended plans did not fully embrace the agreement reached on 6 November 2009. Mr Brockwell indicated that the Council was no longer contending that the development application is invalid as it seeks to amend a development consent, however submitted that there is a jurisdictional barrier to the Court determining the application, on two grounds: first, that there is no jurisdiction to determine what is in effect an original application, and secondly, there is no jurisdiction to grant approval under the Roads Act 1993 to the extent that part of what is now proposed is over Council owned land. The Council was seeking to have the hearing date vacated and for the applicant to discontinue the proceedings.
23 Mr Eastman for the applicant opposed the vacation of the hearing date, and submitted that the Council could have notified the amended plans in time for submissions to be received by 21 December 2009. Mr Eastman submitted that notification of the amended plans could be dispensed with pursuant to cl90 of the EPA Regulation, or if required could proceed in a truncated form rather than the 14 days required under the DCP. Mr Eastman submitted that the jurisdictional issues raised by Mr Brockwell could be dealt with as a contention and were not a basis on which the applicant would discontinue the proceedings.
24 Having regard to the sustained opposition to proposed re-development of the site from adjoining residents, and to their concerns expressed about the process of having to respond to successive development applications, I was of the view that the notification provisions of the DCP ought to be complied with, and in full rather than in a truncated way. The recommendations made by the Design Review Panel and accepted by the applicant in the amendments to the plans appeared to go some way to meeting the concerns the residents had expressed in their evidence on site, and their views on the amendments would be relevant in a final determination of the merits of the application. Notification had not taken place. The hearing date was vacated, and the matter stood over for determination by the Acting Registrar of the application made by the Council for its costs of the notice of motion and the costs thrown away by reason of the vacation of the hearing date: Pan Pacific Property Group Pty Ltd v Waverley Council [2010] NSWLEC 1001. Further directions were made requiring the Council to notify the amended plans in accordance with the provisions of the DCP, and to file and serve an amended Statement of Facts and Contentions including the jurisdictional arguments raised. The parties agreed that the evidence on the remaining merits issues could be dealt with in addition to submissions on the jurisdictional and other issues at a resumed hearing.
25 The hearing resumed on 11 January 2010. Expert planning evidence was provided by Mr Lee Kosnetter on behalf of the Council, and by Mr Anthony Betros on behalf of the applicant. At the conclusion of the hearing directions were made for the parties to provide written submissions on the appropriate order for costs under s97B of the Act and conditions. On 2 February 2010 the parties advised that agreement had been reached as to costs under s97B. The applicant filed its submissions as to conditions on 29 January 2010; the respondent filed draft Conditions and submissions on 4 February 2010.
Jurisdictional issues
26 The Council relies on two contentions going to jurisdiction:
1a: The amended plans filed on 13 November 2009 constitute a new development application which should properly be characterised as an original development application, and the Court has no jurisdiction to determine an original application
1b: The Court has no jurisdiction to determine an application under s138 of the Roads Act 1993 unless a separate formal application has first been made to the Council
Amendment to application
27 Mr Brockwell for the Council submitted that the development for which consent was being sought in the development application lodged with the Council on 10 March 2009, publicly exhibited on 18 March 2009, and as filed with the Court on 19 May 2009 on the basis of a deemed refusal, was for two additional hardstand car spaces and only that. The Council relies on the statement on the Development Application form, and the Statement of Environmental Effects (March 2009) which states in the Introduction and Conclusion that "no change is proposed to the approved building envelope". The Council submits that what is now before the Court is entirely different: the two additional car parking spaces no longer form a component of the development proposal; and the development application before the Court in effect seeks to amend the Court approved development consent by an increase in floor space ratio, increase in gross floor area, reduced northern, eastern and southern setbacks, reconfiguration of unit 7, an increase in ceiling height of the units raising the overall ceiling height, and an overhanging of a public road by the first, second and third floors.
28 Mr Eastman for the applicant submitted that the application before the Court was, and is, in relation to a deemed refusal of a development application which, properly characterised, is for the demolition of an existing building and the construction of a residential flat building. The development application has to be characterised according to an analysis of all of the plans and other documents, including the documents required by cll 1 and 2 of Schedule 1 of the Regulation.
29 The power to amend a development application is conferred by cl55 of the EPA Regulation:
55 What is the procedure for amending a development application?
(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.
(2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development.
(3) If the development application is for:
(a) development for which concurrence is required, as referred to in section 79B of the Act, or
(b) integrated development,
the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.
30 The authorities on the extent of the Court's power to agree to the amendment of a development application are identified in the decision of Acting Registrar Gray in The Village McEvoy Pty Ltd v Council of the City of Sydney [2009] NSWLEC 1214. Those authorities, which address the issue in the context of contested applications to amend applications before the Court, confirm that the Court has no jurisdiction to entertain an original application, and that the relevant comparison is between the development application as originally made and the amendments sought: Waite v Blacktown City Council [2004] NSWLEC 157. The most recent judicial consideration was that of Jagot J in Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155, where her Honour noted (at [6]) that the criteria used to determine whether an amendment converts an application the subject of appeal into an original application have varied. Her Honour adopted a broad approach consistent with that adopted by Talbot J in Ebsworth v Sutherland Shire Council [2005] NSWLEC 603, holding:
7 At [40] in Ebsworth v Sutherland Shire Council , Talbot J observed that:
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.
8 I also consider that a broad approach to both the scope and application of cl 55 is appropriate. Clause 55 enables any application to be amended or varied with the agreement of the consent authority at any time prior to determination. An amendment or variation, as cl 55(2) contemplates, may result in change to the proposed development. The extent of change able to be authorised by agreement of the consent authority or by the Court exercising that function on appeal (and which does not result in the conversion of the application into an original application) will depend upon the facts of the particular case (including, for example, the nature of the site and the nature and characteristics of the proposed development).
9 The availability of the power is to be determined having regard to the beneficial and facultative nature of the provision. That is, I consider that cl 55 ought to be construed so as to give "the widest interpretation which its language will permit" ( Bridge Shipping Pty Limited v Grand Shipping SA and Another (1991) 173 CLR 231 at 260 - 261 per McHugh J referring to Holmes and Another v Permanent Trustee Company of New South Wales Limited and Others (1932) 47 CLR 113 at 19 per Rich J).
10 The question whether the power should be exercised in a particular case (that is, should the Court, exercising the functions of the consent authority agree to the amendment or variation sought) is also to be answered having regard to the beneficial purpose of the provision. The factors relevant to that question will vary depending upon the circumstances in which the application is made (including, for example, the time at which the application is made and the reasons for making the application).
31 Jagot J disagreed with the approach in some of the earlier authorities of determining whether the proposed development is "substantially the same" as the development the subject of the development application lodged with the Council, stating:
16… I do not consider that the "substantially the same" formula (apparently derived from the modification power in s 96) reflects the full extent of the power available under cl 55. I prefer to ask whether the development now proposed is an amendment or variation of the application, recognising that an amendment or variation may result in change to the proposed development, but that the Court has no jurisdiction to entertain an original application.
32 In these proceedings the issue has been raised by the Council not in the context of determination of an application for leave to amend, but after the event. The question is whether the effect of those amendments is that what is now before the Court is in effect an original application such that the Court has no jurisdiction to determine it.
33 In my view, that is not the case. The Council's interpretation of the original application as being for two hardstand car spaces only is not consistent with the approach to be adopted to the construction of development applications generally. The characterisation of development is not determined by how it is described in the development application (Hopkins v Tweed Shire Council (2001) 113 LGERA 406). In Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 Preston CJ held:
19 The misdescription in the development application of the development as being the amendment of the existing development consent does not necessarily mean that the development application is incompetent. The fact that somebody describes development in a particular way does not necessarily lead to invalidity; one looks to substance not form. The important point is to understand what is the particular development that is being proposed and that can be understood by looking at the particular plans accompanying the development application.
34 While the application was described as being for "Alterations to approved residential flat building…" it could not be an application to amend the Court granted 2008 consent: Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 at [16]. The particular development being proposed was that represented in the plans accompanying the development application form and Statement of Environmental Effects. Those plans, while not dimensioned, showed a four storey residential flat building with seven units and a corner shop, and parking for a total of six cars, four spaces accessed from Wairoa Avenue and two from Hastings Parade. The residents who made written submissions in response to the application as originally notified were aware of, and commented on, the increase in footprint of the building to the east and west, and its location closer to the western boundary, when compared with that in the 2008 approval.
35 The plans filed in accordance with the leave granted on 22 July 2009 provided details of setback and internal dimensions and revised details of landscaping, together with an amended Statement of Environmental Effects that more accurately described the application and its impacts.
36 The relevant comparison for the purposes of addressing the Council's contention on cl55 is that between the original application, as clarified following the directions made on 22 July 2009, and the application now before the Court following the amended plans filed on 13 November 2009. The original application was for a four storey residential flat building with 7 units (5 x one bedroom, 2 x two bedroom), a corner shop and 6 car parking spaces with access from two street frontages. The amended application is for a four storey residential flat building with 7 units (5 x one bedroom, 2 x two bedroom), a corner shop, and 4 car parking spaces accessed from Wairoa Avenue. The north west side setback has increased from 3.5m to 4.5m, and there is a nil setback on the ground floor along the two street frontages. The internal dimensions and configuration of the units have changed, as has the location of bins and other storage. The height has increased as a consequence of an increase in floor to ceiling height for unit 1. While the physical dimensions of the proposed building and its location on the site have changed, these changes do not convert the original concept into something substantially different (to use the language of Lloyd J in Waite), or change the "essence" of the development (to use the language of Jagot J in Radray) such that what is now before the Court is an original application. The amendments made in the plans filed on 13 November 2009 do not fall outside the scope of cl55.
37 In exercising the discretion conferred by cl55, I concluded that it was appropriate to grant leave to rely on those amendments on the basis that they would considerably reduce the issues in dispute and go some way towards responding to the issues identified by the Council and the objectors. The granting of leave triggered the application of s97B of the Act; the question of whether an order for costs under s97B(2) was required and if so, the amount of any costs ordered, was reserved. The parties have reached agreement on the amount of costs payable as a consequence of the amendment, which will be reflected in the final orders made.
Roads Act consent