Pepperwood Ridge Pty Ltd v Newcastle City Council

Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 ; Ervin Mahrer & Partners v Strathfield Municipal Council [No. 2] (2001) 115 LGERA 259; CASES CITED: Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 ; Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292; Pepperwood Ridge Pty Ltd v Newcastle City Council (2006) 145 LGERA 340.

APPLICANT Mr T.G Howard (Barrister) SOLICITORS Cleaves Mallik Gibbs LEGAL REPRESENTATIVES: RESPONDENT Mr M Fraser (Barrister) SOLICITORS Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10470 of 2005 Pepperwood Ridge Pty Ltd v Newcastle City Council

1 Talbot J: The applicant company Pepperwood Ridge Pty Ltd lodged a development application dated 24 March 2004 with the respondent council on 25 March 2004. The application No. 04/0673 proposed the development of "51 SEPP 5 units in 10 stages". 2 In a supporting Statement of Environmental Effects (SEE), the development was described as stage two of DA 03/1676 Pepperwood Retirement Village. The SEE noted the current zoning of 7(c) Environmental Investigation under the Newcastle Local Environmental Plan 2003, together with the fact that residences were permitted in an adjoining 2 (a) zone to the east on the opposite side of Lake Road and that residences are permitted on the subject site. 3 State Environmental Planning Policy - Seniors Living (SEPP-SL) had the effect of repealing SEPP 5 retrospectively from 18 February 2004 and applied the provisions of SEPP - SL to any application lodged after that date. 4 By letter dated 27 May 2004, the applicant's consultants lodged what purported to be an objection pursuant to SEPP 1 in respect of the application of cl 74(3) of SEPP-SL. At that date clause 74 (3) provided a prohibition against a grant of consent to a development application to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless it is satisfied that the development will result in 70 or more dwellings for use as serviced self-care housing. SEPP (Seniors Living) 2004 (amendment No 1) published in the gazette on 16 December on 2005 omitted Clause 74. 5 Following a decision by Pain J that SEPP - SL did not apply to the land as land described in Schedule 1 (Environmentally sensitive land), the Court of Appeal decided that the subject land was land to which SEPP - SL applied and that accordingly, the development application could be considered under its terms: Pepperwood Ridge Pty Ltd v Newcastle City Council (2006) 145 LGERA 340. 6 The amendments made to SEPP - SL in December 2005 restricted the form of seniors housing that is permitted on land adjoining land zoned primarily for urban purposes so that only hostels or residential care facilities will be permitted on that adjoining land. Clause 83 inserted by the amendment provides that a development application that was lodged with the consent authority (but not finally determined) before the commencement of SEPP - SL (Amendment No. 1) is to be determined as if that Policy had not been made. 7 On 9 August 2006, amended plans and documentation were filed with the Council on behalf of the applicant. 8 At a callover before the Registrar on 14 August 2006, it was noted that amended plans had been lodged with the Council. Directions were made regarding exhibition of the amended plans and the filing of a Statement of Issues and Statement of Basic Facts by 6 November 2006. The proceedings were stood over for further callover on 13 November 2006. By letter on the same day, namely 14 August 2006, the solicitors acting for the applicant wrote to the Council's solicitors and forwarded a number of documents reflecting the amended plans and the amended proposal and seeking confirmation that pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), the Council accepted the amendments proposed. Under the cover of a further letter dated 12 September 2006, the applicant's solicitors forwarded to the Council's solicitors a schedule purporting to provide particulars of the changed development in compliance with cl 55. 9 The documents lodged directly with the Council on 9 August 2006 included a completed form of Development Application. This document remains on the Council file bearing the following hand written endorsement for which no author has been identified to the court: - "Amended details incorrectly lodged as new DA". 10 On 18 August 2005, the applicant's planning consultant Planning Workshop Australia wrote to the Senior Development Assessment Officer at the Council as follows: - "On the 9 August 2006, an amended Statement of Environmental Effects (SEE) with supporting documentation was lodged with the Council pertinent to a development application for 72 Seniors Living self-contained dwellings at 164-168 Lake Road, Elermore Vale. This SEE was intended to support amendments to an existing application originally lodged in 2004, known as DA 04/0673. At that time, DA fees of $17, 820 were tendered to the Council.

However, this SEE was erroneously recorded as a new DA, namely DA 06/1366. This was not the intention of the applicant.

It is hereby requested that DA 06/1366 be withdrawn, and the amended SEE, supporting documents, and the fees of $17, 820, be transferred to DA 04/0673 to assist the Council in its determination of that DA."

11 A Notice of Proposed Development dated 21 August 2006 was prepared by the Council and referred to the receipt of Development Application 04/0673 seeking consent to carry out the following development: "Erection of 72 self care dwellings contained in three buildings". 12 The letter gave notice that detailed plans and any accompanying documents could be inspected until 4 September 2006. Representations were invited prior to that date. A copy of the submitted notification plans showing the general arrangement of the proposed development in relation to the site boundaries was enclosed with the Notice. Council records disclose that the Notice was forwarded to thirteen addresses. The application was also referred to statutory authorities and to internal sections of the Council, for comment. 13 On 9 October 2006, the Council's solicitors wrote to the applicant's solicitors advising them that because the number of dwellings contained in the amended proposal significantly exceeds that which was originally included in the development application, the Council had instructed them that it does not agree to the requested amendment to the development application. 14 At the callover on 13 November 2006, the court was advised that the Council would not accept the amended plans. The applicant was directed to file and serve any notice of motion seeking leave to rely on them by 8 December 2006. 15 A letter dated 12 December 2006 from the applicant's solicitors to the solicitors for the Council providing written particulars of the changed development as required by clause 55 of the EPA Regulations, noted the following changes: ORIGINAL DEVELOPMENT APPLICATION AMENDED DEVELOPMENT APPLICATION 51 units contained in 13 buildings. 73 units contained in 3 buildings Above ground secured carparks Underground secured carpaking [sic] Straight access road along boundary Winding access road with tree lined medium strip Large quantities of external retaining walls retaining walls incorporated within building footprint (underground carparks) Building A setback 6m from Lake Road Building A setback 24 m from Lake Road Building A parallel to Lake Road frontage Building A angled towards Lake Road frontage Buildings separated by driveways Buildings separated by increased areas of landscaping Separation between buildings minimum distance Separation between buildings increased Access driveways to each unit (51 off) Access driveways to each building (3 off)

16 Damian Jaeger, the Senior Development Planner employed by the Council, makes the following observations regarding the differences between the original and amended proposals:- 1. The amended proposal increases the number of dwellings by 21.

2. Whereas the original proposal showed ten separate 2-storey buildings evenly spread across the site, the amended proposal is for three buildings of 2-3 storeys.

3. The majority of dwellings in the original proposal involved 3 bedroom units whereas the amended proposal consists of largely 2 bedroom units with the option of a smaller third bedroom/study. The larger height and profile of the amended proposal requires a greater amount of earthworks and engineering to allow the design to follow the topography. It is of a greater height, bulk and scale and its overall visual profile would be greater.

4. The original dwellings were designed as villas/townhouses whereas the amended proposal is more of an apartment style development with several dwellings for each of the three floors.

5. The parking proposed for the original proposal was in individual garages and spaces whereas the parking of the amended proposal is through a basement combined parking area. 17 Mr Jaeger also identifies a number of aspects of the amended proposal which he considers will lead to an increased adverse impact. On the other hand the applicant's consultant town planner Garry Keith Fielding identifies twelve claimed advantages over the development in the form originally proposed. The improvements noted by Mr Fielding generally relate to increased amenity for the future residents. He also notes that a number of issues raised in respect of the original design have been addressed. The observations by Mr Jaeger are to be preferred as part of the criteria for assessing the extent of the changes. 18 In summary it is certainly open for the court to conclude that the amended or changed proposal will be distinct from the original in many respects particularly in relation to the built form of the improvements and the extent of accommodation provided. The overall object of the proposal nevertheless remains the same namely, the provision of accommodation for aged or senior members of the community. 19 The appeal against the deemed refusal of its development application was filed in the court on 17 May 2005. By notice of motion filed 4 December 2006, the applicant is seeking orders pursuant to clause 55 of the Environmental Planning and Assessment Regulation 2000. 20 Clause 55 relevantly provides:- 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. 21 The first preliminary question raised by the applicant is whether the development application DA 04/0673 has been lawfully amended or varied by the applicant with the agreement of the respondent as consent authority within the meaning of Regulation 55. 20 If the answer to the first question is in the negative, a second question arises, namely does the Court have jurisdiction under clause 55, to permit the applicant to amend or vary its development application, or alternatively, as the respondent contends, is the Court deprived of that jurisdiction as a consequence of proposed amendments amounting, in effect, to a new development application. Thirdly, in the exercise of its discretion, should the court, standing in the shoes of the consent authority pursuant to s 39 (2) Land and Environment Court Act 1979, agree to the development application being so amended in the event that the court has the requisite jurisdiction.

21 In one sense if the first question is answered in the affirmative there is no need for the Court to consider the second and third questions. However, it is arguable that the respondent council can only lawfully amend or vary the application within the meaning of clause 55 (1) if the changes made do not amount to a new development application. 22 The applicant relies upon the following actions on the part of the Council to satisfy the Court that there was an agreement, to accept the changes and to consider the proposal in its amended form:- (a) The acceptance of the amended plans and supporting documentation by Council staff on 9 August 2006.

b) The endorsement on the front page of the document lodged on 9 August 2006 in the form of a development application with the words "Amended details incorrectly lodged as New DA".

c) The placing of the documents on the existing file in respect of the subsisting development application DA 04/0673.

d) The manner in which the matter was dealt with at the callover before the Registrar on 14 August 2006 when both parties were represented by legal representatives.

e) The notification by the Senior Development Planner on 16 August 2006 requesting other members of Council staff to arrange for urgent notification of the proposed development.

f) The payment of further fees to the Council in the sum of $17 820 on 19 August 2006 at the request of the respondent and the acceptance of that payment.

g) The notification of the application to persons entitled to notice on 21 August 2006.

h) A request made to the applicant's consultant environmental planner on 22 August 2006 by the Council's senior planner for additional copies of full sized plans and the Statement of Environmental Effects for reference to relevant persons and departments in order to finalise internal and external referrals and the acceptance of those documents for that purpose. i) On or around 25 August 2006, the respondent referred the amended proposal to a number of authorities, including: · the NSW Rural Fire Service; · the RTA; · the NSW Police; · the Mine Subsidence Board; and · the Aboriginal Land Council.

j) Circulation of the proposal in its amended form for internal review to various sections of the Council including: · Community Worker Aged and Disability Services · Landscaping; · Health and Environmental Services · Building; · Traffic; and · Engineering.

k) A request for and subsequent acceptance of a cheque for a referral/assessment fee in the sum of $250 payable to NSW Rural Fire Service.

l) Until at least 9 October 2006 (when the Council's solicitors wrote to the applicant's solicitors rejecting the amendments) the Council file continued to be managed on the basis that consideration and assessment was proceeding in accordance with the amended proposal. 23 The facts in respect of the matters relied upon by the applicant as outlined above are generally not in dispute. The dispute with the Council centres on whether as a question of fact the document lodged on 9 August 2006 was an original application or alternatively, whether it is open for Council to regard it as an amended application. The Council relies on the initiation process by the applicant when it lodged the amended plans in support of a formal development application which gave no indication that it was intended to be an amendment. The letter written by the applicant's solicitors to the Council's solicitors on 14 August 2006 is written in terms which suggest that the applicant was seeking a concession from the Council. The letter stated, in part: "Please confirm that pursuant to Regulation 55 of the EPA Regulations Council accepts the amendments proposed in the enclosed series of documents."

Council also relies on the notice sent to interested persons on 21 August 2006, which makes no reference in specific terms to an amendment.

24 During oral submissions Mr Fraser who appears for the Council argued that clause 55 requires an overt decision from the Council. That is a function conferred or imposed on it within the meaning of s 22 Local Government Act 1993. The difficulty with the submission (which was not raised until the later part of the hearing) is that there is no confirmatory evidence one way or the other, other than the tender of a copy of a document under the heading "Development and Environment Delegation as at 13 March 2006". This document raises more questions than it answers. There is ample scope for delegation to be made in relation to a number of aspects of processing and dealing with development applications including acknowledging receipt of an application, notification, advice regarding additional fees and information as well as to sign and issue routine correspondence. 25 The applicant is entitled to rely on a presumption of regularity in respect of the actions taken by Council officers. Any assertion to the contrary by the council should be supported by reliable and probative evidence. Although within Council's domain, that evidence has not been forthcoming. Accordingly I reject the submission. 26 It is not necessary to pursue this matter further other than to refer to the following statement by Mc Hugh JA in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 64 as follows:-

where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled…

27 I make the presumption of fact on the basis that there is a reasonable inference that the officers of Council, in particular Mr Jaeger were acting in the ordinary course of the Council's affairs. The presumption has not been rebutted, in circumstances where the Council itself was clearly in a position to support the submission made by Mr Fraser with the necessary evidence. This evidence had not been forthcoming. I do not propose to deal further with this question. Conclusion

28 The questions that arise lead to answers which have a consequence for the future of the development application. No purpose is served, in any relevant practical sense, by making a distinction between the capacity of the council to accept an original application and the lack of authority for the court to do so. The applicant is seeking to maintain the status of the original application in order to take advantage of transitional provisions associated with the amendments made by and to SEPP - SL. It is important therefore to decide whether the documents lodged with the Council in August 2006 can be treated as an amendment to the original application so that the latter remains on foot. Nevertheless I accept that if the court concludes that what is now proposed by the applicant is beyond the ambit of Regulation 55, then the Council was not in a position to agree to the so called amendment or variation.

29 Significant facts to be taken into account in the current assessment are the increase of the number of dwellings by approximately 40% and the change in concept brought about by the reduction from ten separate two storey buildings to three buildings of 2-3 storeys. The change in the bedroom numbers for the individual units is also significant. The consequence is that the amended proposal has greater height, bulk, scale and overall visual profile. As noted earlier in these reasons however, the objective remains for the provision of residential accommodation to senior people.

30 In Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 I considered a number of authorities decided before and after the introduction of Regulation 55 addressing what is properly to be regarded as an amendment or variation of a development application. Bignold J carefully considered the application of Regulation 55 in Ervin Mahrer & Partners v Strathfield Municipal Council [No. 2] (2001) 115 LGERA 259. 31 Bignold J construed clause 55 in Ervin Mahrer and held that the scope and extent of the statutory power of amendment created by the regulation permits a development application to be changed or altered resulting in an alteration, variation or modification of the proposed development. Having so found he went on to make the following observation at [141]:- For completeness, I would add that if, contrary to what I have held, the true construction of the amendment power created by cl 55 of the Regulation be assumed to yield only a power of amendment circumscribed or delimited so as to permit only an amendment which did not convert the proposed development into something "substantially different" ( Manchil ) or "fundamentally different in character" ( City of Marion ), I would find that the "amended plans", though involving extensive amendments to the proposed development, did not result in a change to the essential character of the proposed development and did not result in an alteration to the proposed development so as to radically transform it (cf North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 473; 97 LGERA 433 at 438 referring to the statutory power of "modification" of development consent conferred by s 102 of the EP&A Act, since re-enacted as s 96.) 32 In Ebsworth, I generally agreed with the approach taken by Bignold J. Nevertheless I considered some outer boundary should be placed on the opportunity to amend an application beyond maintaining its original identity. 33 The reasoning I adopted lies between the alternative positions taken by Bignold J in Ervin Mahrer. This is apparent from what I said at [37] in Ebsworth:-

[37] Applying the reasoning of Bignold J in Ervin Mahrer and Elali, qualified by what I said in Urbis and stated above, it is open for the Court to look at the proposal before and after the proposed amendments to ascertain in a broad sense whether in truth they are properly to be regarded as changes or alterations to the development regarded as an overall concept, rather than taking an approach that involves a quantitative assessment of the variations to determine whether they are substantial by using some empirical formula to ascertain the degree of change. 34 In Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292, Jagot J followed the broad approach adopted in Ebsworth. Dealing with the powers of the Court available under Regulation 55, Her Honour preferred to ask whether the development now proposed is an amendment or variation but that the Court has no power to entertain an original application.

35 I do not therefore propose to undertake a quantitative assessment of the variations to determine whether they are substantial. However, having regard to the overall concept I am not convinced that the substantial changes to the layout, specification and configuration of the proposed buildings are such that the proposal submitted in August 2006 can be regarded as an amendment or variation of the original development. It is in truth a new and conceptually different proposal which bears little resemblance to the original except in its overall description of the type of the development. Thus it was open for the Council to reject an application made pursuant to Regulation 55 on that ground alone. 36 There is nothing within the terms of Regulation 55 that compels a council to make the agreement. Equally there is a discretion vested in the Court when it is asked to exercise the power under Regulation 55 pursuant to s 39 (2) Land and Environment Court Act 1979. It must follow from what I have just said that not only do I reject the proposition that the plans and supporting documents lodged in August 2006 can be regarded as an amendment or variation, I would in any event exercise my discretion and refuse to agree on behalf of the consent authority, pursuant to Regulation 55 under s 39 (2).

37 Nevertheless, that leaves the question of whether the Council did exercise its discretion and made an agreement with the applicant that the application could be amended or varied in the manner of the plans and specifications lodged in August 2006.

38 The only substantive evidence of a prospective agreement by the Council centres on what occurred at the callover before the Registrar on 16 August 2006 and the adoption of the original file number. The subsequent correspondence and actions are equally consistent with the Council dealing with the development application as a new application or as an amendment to the original application. The steps taken were part of the statutory obligations imposed upon a Council to notify an application, refer it to appropriate statutory authorities and to undertake a process of consideration by its own officers in any relevant respect. None of the matters relied upon by the applicant are peculiar to the process of amendment or variation. Even the collection of a further fee can be rationalised by the Council giving credit for an amount already paid on the lodgement of the original application. 39 The endorsement on the form of development application is of little consequence and merely reflects the approach of the applicant communicated to the Council and its advice of how it regarded the application. The applicant itself initially indicated a view supporting the making of a fresh application by lodging a new development application form unqualified in any way to suggest an amendment was intended. At its highest, the exchange between the legal representatives at the callover before the Registrar is no more than an indication to the court, albeit in loose terms, that the new plans were to be notified so that any directions to be made and timetable set, properly took that process into account. The significance of the notification of the amended plans, in the present context, is further reduced because the original plans had not been advertised or notified. The arrangements for notification were at that stage no more than the commencement of a routine practice.

40 I therefore reject the following claims by the applicant. First that the substituted proposal lodged with the Council in August 2006 amounted to a relevant amendment or variation for the purposes of Regulation 55. Secondly that the Council by its actions has compromised the situation to the extent that it is bound by any alleged agreement made pursuant to the Regulation. Moreover, even if the amended plans fell within Regulation 55 I would not be prepared to exercise the discretion to agree to the amendment of the development application in that way having regard to the magnitude of the changes and variations made to the proposal.

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