Pepperwood Ridge Pty Ltd v Newcastle City Council

Ebsworth v Sutherland Shire Council [2005] NSWLEC 603; CASES CITED: Ervin Mahrer and Partners v Strathfield Council (No 2) (2001) 115 LGERA 259; Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292

APPLICANT Mr T Howard SOLICITOR LEGAL REPRESENTATIVES: Mallik Rees Lawyers RESPONDENT Mr M Fraser SOLICITOR Sparke Helmore Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10470 of 2005 Pepperwood Ridge Pty Limited v Newcastle City Council

EX TEMPORE JUDGMENT 1 Her Honour: This is a Notice of Motion of 21 August 2007 seeking the Court's consent under cl 55 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) to amend the plans on which the Applicant relies in these Class 1 proceedings. Clause 55 states: (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 As originally proposed the development was for 51 self care units in 10 buildings on the relevant land. According to par 9 and 10 of Mr Howard's written submissions the purpose of the changes is to comply with the State Environmental Planning Policy - Seniors Living 2004 (SEPP SL) standard requiring a minimum number of 70 self care dwellings on the land. This the Applicant seeks to achieve essentially by reducing the number of three bedroom units originally proposed and increasing the number of two bedroom units, so as to increase the overall number of dwellings to 70, but to do so in a way which minimises change to the built form and building footprint originally proposed (10 buildings). The increase in the number of dwellings has also prompted a proposed increase in the proposed number of car parking spaces from 104 (originally proposed) to 114 and changes to the driveway and landscaping to account for the additional parking and traffic. 3 The proposed amendments are described in the document comprising Annexure A to the affidavit of Mr Mallik sworn 20 August 2007, being a document which is also part of the Statement of Environmental Effects (SEE) which accompanied the application. The SEE describes the proposed development as proposed to be amended or varied (section 3 at p 9-12) and compares the proposal (as amended or varied) with the original proposal (section 4.4.2 at p 25-29).

4 The Applicant also relied on the affidavit of Mr Mallik sworn 20 August 2007 as it sets out the history of the proceedings to date. The Applicant also relied on the affidavit of Mr Fielding town planner sworn 23 August 2007 in which he outlined the nature of the changes and summarises in par 5 his view of why the changes had a beneficial planning outcome.

5 The Council relied on a bundle of documents and an affidavit of Ms Hawes, town planner, sworn 27 September 2007 in which she also considered the changes between the original proposal and what was proposed. She identified both positives and negatives from a planning perspective in the changes and did not have a concluded view on whether the changes were beneficial overall.

6 The proceedings have a lengthy history identified in the affidavit of Mr Mallik, having commenced with a development application filed on 25 March 2004 for a SEPP 5 development of 51 self care dwellings. That SEPP was replaced on 31 March 2004 by the SEPP SL which inter alia required a minimum of 70 dwellings for this type of development under cl 74(3). A transitional clause of SEPP SL (cl 6) had the effect of retrospectively applying the terms of SEPP SL, including cl 74(3), to this development application. A moratorium on development of self care housing was also imposed on land next to urban zoned land but this development application was able to continue under the transitional arrangements put in place at the time the moratorium was imposed on 16 December 2005.

7 A legal issue raised by the Council was that the development application was prohibited and this issue was determined in Class 4 proceedings which were appealed to the Court of Appeal. The Court of Appeal held in favour of the Applicant in a decision of 14 June 2006. The Council did not take any steps to assess the development application in that period nor has it done so since. These Class 1 proceedings were commenced on 17 May 2005.

8 There has been a further change to the Seniors Living policy effective from last Friday 12 October 2007 which means that there is no longer a moratorium on self care housing in certain locations in place and no minimum limit on the number of dwellings required for development applications of this type. The parties agree that these latest amendments have no legal relevance to this Class 1 appeal.

9 There is currently an appeal pending against a decision of Talbot J who rejected another application to rely on amended plans by this Applicant for this development application. A condition of granting this motion is that the other plans the subject of that appeal must not be relied on by the Applicant.

10 The Council has not prepared a statement of issues and contentions in the matter and the development application, while for integrated development, has not been referred to any of the relevant authorities for review. Applicant submissions 11 In written submissions Mr Howard, counsel for the Applicant, sets out a number of reasons why the Court should exercise its discretion in favour of the Applicant as follows. Firstly, the changes are beneficial from a town planning perspective and represent a better planning outcome as compared with the original application. Secondly, the changes are responsive to the retrospective application of a development standard imposed by cl 74 of SEPP SL. Thirdly, if the Court were to agree to the proposal being amended or varied as proposed, this would not prejudice the rights of any potentially affected person. Fourthly, the particular history of this proposed development invites the Court, subject to other considerations in the exercise of its discretion, to agree to the amendments, because of procedural impediments which are otherwise placed in the way of the Applicant seeking to pursue the orderly development of its land.

Council's submissions 12 The Council argued that because there was no statement of issues and contentions filed in the matter there was no basis on which the Court could assess whether the amendments were a response to the issues in the appeal. While this was not a matter that limited the Court's power this was argued to be relevant in the exercise of discretion because that discretion was more readily exercised if the amendments sought did respond to the issue in the proceedings. In this case where there has not been any merits assessment by the Council, according to their counsel, there is no basis on which the Court can assess whether the amendments ought be allowed. The application is premature because these steps in the proceedings have not taken place.

13 It is unclear that the changes are beneficial as the planning evidence of Ms Hawes is equivocal.

14 Further, because of the recent amendments to SEPP SL, whereby this Applicant could lodge a new development application with the Council for any number of self care dwellings, the Court should not further enable this appeal by an amendment of the plans. Finding 15 There is no dispute that the Court has power to determine this motion under cl 55 of the Regulation. In other words, no issue is raised by the Council that the amendments are of such a scale that they are really a new application which the Court cannot entertain in this Class 1 appeal. It is clear from a comparison of the two different site plans that the footprint of the buildings affected, which is four or five out of 10 buildings are virtually the same. While there are changes in roof profiles there are no height changes. One of the main changes is the provision of extra uncovered car parking when previously garages were supplied within the buildings.

16 The only issue is whether the Court should exercise its discretion to allow the amendments sought in the Notice of Motion.

17 Cases such as Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 and Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292 have emphasised that the Court's power under cl 55 is wide and cl 55 is facultative.

18 I reject the Council's submission that the discretion should not be exercised in the Applicant's favour because there is no statement of issues/contentions and therefore no identifiable matter about which there can be "agreement" in the context of this appeal.

19 While reliance was placed on Bignold J in Ervin Mahrer and Partners v Strathfield Council (No 2) (2001) 115 LGERA 259 as supporting this submission I do not consider it supports the argument the Council has made and which I have rejected. The application is not premature.

20 The primary argument in favour of the Applicant is that the amendment is responding to retrospective changes made by cl 74 of the Seniors Living policy after the development application was filed and requiring a minimum of 70 dwellings when the development application as filed was for 51 self-care units

21 The additional matters raised in relation to the exercise of discretion are that the amendments are beneficial in a planning sense. It is important that the Court not embark on a merit assessment of the proposed amendments in this motion as that is a matter for another later day when the merit appeal is determined. I am satisfied that the amendments serve a purpose in the context of these proceedings and there is utility in the granting of this application.

22 There is no prejudice alleged by the Council if the amendments are made despite the emphasis in submissions by its counsel that three years have elapsed since the development application was first lodged with the Council. Nor is it relevant that the law has changed again effective from 12 October 2007.

23 I consider I should exercise my discretion and grant the order sought in the Notice of Motion filed by the Applicant, with orders concerning the Applicant not proceeding with the appeal in relation to the decision of Talbot J concerning amended plans.

24 The Court makes the following orders:

1. The Court makes the order sought in paragraph 1 of the Applicant's Notice of Motion dated 20 August 2007, subject to the Applicant discontinuing its application for leave to appeal in the Court of Appeal proceedings No 40059 of 2007 within 7 days of the date of this order.
2. Within 7 days of the date of this order the Applicant is to file in this Court and serve on the Respondent a copy of the Notice of Discontinuance as filed in the New South Wales Court of Appeal.
3. Stand the matter over to Friday 26 October 2007 before the Registrar for further directions.
4. By 4pm on Tuesday 23 October 2007, the Respondent is to provide written notification to the Applicant of the timetable proposed by the Respondent for further conduct of these proceedings.
5. By 4pm on Thursday 25 October 2007, the Applicant is to provide written notification to the Respondent of any alternative or additional directions proposed for further conduct of these proceedings.

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.