Pyramid Consulting Pty Ltd v Georges River Council

Legal Framework

1. 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. The parties agree that the relevant power to amend is contained in cl 55 of the Regulation, and that if satisfied, the Court may exercise the functions of the Respondent as consent authority under s 39(2) of the Land and Environment Court Act 1979.
3. The framework for applying cl 55 of the Regulation has been summarised in numerous cases, the Respondent relied on the summary by Robson J in Orico Properties Pty Ltd v Inner West Council [2017] NSWLEC 90 (Orico) at [7] - [14], which I refer to but will not repeat here.

Evidence

1. The Applicant's Motion seeks leave to rely on amended plans and reports including amended plans; amended Statement of Environmental Effects (SEE); a request to contravene the lot size development standard in cl 25(1)(g)(ii) of the Housing SEPP pursuant to cl 4.6 of the Georges River Local Environmental Plan 2021 and updated reports (Amended DA).
2. The affidavit of the Applicant's solicitor Maysaa Parrino affirmed 13 March 2023 provides a detailed schedule of amendments dated 6 March 2023 (at Tab 6). I summarise the main amendments as follows: 1. General - Gross Floor Area reduced by 130.58 sqm, boarding rooms reduced from 26 to 19 including amendments to internal room configurations on all levels; windows on both side facades are removed; car spaces reduced by 10; motorbike spaces reduced by 2; bicycle spaces increased by 6; front setback increased from 4760mm to 5000mm. 2. Basement 2 level is removed; motorbike and bicycle spaces are relocated to basement 1; car spaces reduced to 4; front setbacks for basement increased from 1040mm and 1435mm to 5935mm and 6330mm respectively. 3. Ground Floor - communal room is enlarged; rear terrace is redesigned to provide outdoor seating space and BBQ area provided; courtyards for the accessible and managers room converted from 1 common courtyard to 2 private courtyards by providing 1800mm high fencing around; bin area relocated from the front (facing Oxford Street) to east side boundary; main entry door is converted to single leaf framed glass door; new canopy tree added to front yard. 4. First Floor 1 - additional front balcony to Room R04. 5. Second Floor - 1 additional front balcony to Room R11; rear balcony enlarged.
3. Ms Marrino identifies how the Amended DA seeks to respond to the particular contentions in the SOFC at paras (37)-(65) and that the Applicant and their advisors believe the Amended DA would reduce the number and scope of issues in the appeal and result in reduced environmental impacts. Ms Parrino provides her opinion that the Amended DA will enable the proceedings to focus on the real issues and provide the just, quick and cheap resolution of the proceedings.

Applicant submissions

1. The Applicant submits that the Amended DA is within the broad scope of cl 55 of the Regulation. The DA remains a development application for the demolition of existing structures and construction of a boarding house. The SOFC raises contentions in relation to the Housing SEPP, and in the alternative the ARH SEPP, and the Applicant is entitled to propose amendments to address these contentions and seek to reduce the issues.
2. The Applicant says the ARH SEPP applies however it is not prevented from modifying the DA to better accord with the Housing SEPP. Pursuant to s 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 (the EP&A Act), a consent authority is to take into consideration the provisions of any environmental planning instrument (EPI) that are of relevance to the development. The definition of boarding house in the Standard Instrument under the Housing SEPP simply adds use for affordable housing and that it is to be managed by a particular provider. The Amended DA includes that it be managed by a registered community housing provider.
3. The Applicant submits that the proposed amendments do not affect the essential character or proper characterisation of the DA. Further, the Court should not conflate the source of power to grant consent for what is a boarding house, with what are the jurisdictional prerequisites for the development sought. It says the ambit of amendments is limited to reducing the scale of development, in that the building has reduced in size and has fewer rooms to accommodate a different number of residents but it is still for a boarding house with shared facilities and bedrooms.
4. Finally, the Council has already done the task of assessing the DA against the Housing SEPP in its SOFC, and if leave to amend is granted, the Council simply needs to update its SOFC with which issues fall away as a result of the further information.

Respondent Submissions

1. The Respondent submits that the Amended DA is fundamentally different to the DA and would constitute a new development application in qualitative and quantitative terms. The nature and extent of the amendments to the development bear little resemblance to the DA in that the Amended DA: 1. Has only two thirds of the capacity of the current DA (30 residents compared with 45 residents); 2. Has a 17% reduction in total Gross Floor Area (619 m2 compared with 749.58 m2); and 3. Deletes one storey of basement and significantly changes the footprint of the building, with reconfiguration of rooms on each floor.
2. The Respondent submits that the DA proposes development for a boarding house designed to comply with the ARH SEPP, whereas the Amended DA is seeking to address the Housing SEPP. The amended SEE dated 12 March 2023 states that the Housing SEPP applies and includes a compliance table against the Housing SEPP provisions. There are significant differences in the regime for boarding houses under the ARH SEPP and the Housing SEPP, as detailed in Pyramid at [19]. Pyramid at [32] states that: "…the parties, experts and objectors cannot run alternative cases contingent on the application of one or other of the ARH SEPP or the Housing SEPP - they can only run a case addressing the development application and the development before the Court".
3. The Respondent says the Amended DA can no longer be characterised as a boarding house designed to comply with the ARH SEPP and a boarding house under the Housing SEPP is a different characterisation of development with different standards. The land use definition of a boarding house has changed under the Standard Instrument definition and without the fundamental elements, including that the user must be the Land and Housing Corporation or a registered community housing provider, it is not a boarding house under the Housing SEPP. Pyramid at [20] states: "The development would have to be altered in fundamental respects in order to comply with the Housing SEPP before the Court could have power to grant development consent."
4. Further, the Respondent submits that if leave were granted, the Respondent would need to carry out a fresh assessment of the Amended DA against the Housing SEPP. Pyramid at [37] states a new development application for an amended boarding house development under the Housing SEPP: "…is the appropriate forum for determining whether consent should be granted to the modified development, not the forum of the current appeal concerning a different development".
5. In Barr Property and Planning Pty Ltd v Cessnock City Council [2021] NSWLEC 108 a much reduced form of development for one stage of a previously multistage application was found to be a new application, as the changes would give rise to different considerations requiring the assessment to start again at [17]-[20].

Consideration

1. I have carefully considered the Amended DA plans and documents against the DA, and I am satisfied as a matter of fact and degree that the Amended DA does not constitute a new development application for the following key reasons: 1. The general description of the elements of the development are still able to be described as "boarding house", "part 3 storey, part 4 storey building" and "basement" carparking. The reduction in the number of rooms and the deletion of one basement level does not in my view change the essence or overall concept of the DA. 2. The proposed amendments are limited to amendments to the design and layout. The consequences of the changes are to create a reduced scale of development with internal reconfigurations of the layout of the common areas and bedrooms. The number of boarding rooms has been reduced from 26 to 19 by reconfiguring the internal room layout on each level. The presentation to the streetscape is amended by increasing the front setback, the addition of a canopy tree and additional front balconies at the first and second floor. The bin area is proposed to be relocated to along part of the boundary with the existing residential dwelling to the east. The terrace on ground floor at the rear of the property is proposed to be increased in size and a BBQ area has added. In my view the nature and extent of these amendments answers the essence or overall concept of the development. 3. I accept that the amendments have been brought about to address the Respondent's contentions in the SOFC and seek to reduce issues, which is encouraged and consistent with the power to amend being "beneficial and facultative" (Orico at [9]). In Pyramid, the Court contemplated that the Applicant may seek to amend the plans to better accord with the Housing SEPP at [36]. 4. I accept that the Applicant is not prevented from modifying the DA to better accord with the Housing SEPP. Granting leave to amend will amend the development before the Court, and the parties, experts and objectors will then prepare for the hearing addressing the Amended DA. 5. Although the Applicant has the option of lodging a new application with the Council for a boarding house which would need to comply with the Housing SEPP, that is not determinative of this question before the Court. The question before me is whether the particular amendment is within the scope of cl 55 of the Regulation, and I find that the amendment is within power. The evaluation of relevant EPIs and any jurisdictional prerequisites to the grant of consent are matters for the Court when presiding over the hearing.
2. I find that the Amended DA is within the broad scope of cl 55 of the Regulation.

Other grounds of objection

1. The Respondent raises two further grounds in opposition to the Amended DA.

The Amended DA is deficient and incomplete

1. The Respondent submits that it should not be put to the time and expense of preparing an amended SOFC and its experts joint conferencing because the Amended DA is deficient and incomplete as it fails to include: 1. an amended landscape plan, BASIX certificate, acoustic report and geotechnical report; 2. amended stormwater/engineering plans, as the plans submitted with the Amended DA on 16 March 2023 are inconsistent with the Amended DA architectural plans; and 3. the name of the registered community housing provider, which it says is information required to be submitted with a DA under the Housing SEPP, pursuant to cl 50 of the Regulation (and Pt 1 of Sch 1 of the Regulation).
2. I consider that any deficiencies or inadequacies with the Amended DA documents as identified are matters that it are open for the Respondent to raise in an amended SOFC if leave is granted including any insufficient information, they are not matters which are determinative of this motion to amend the DA. In relation to the time and cost of the Amended DA, the Applicant has agreed to the usual order for costs thrown away under s 8.15(3) of the EP&A Act.

The Respondent will suffer prejudice if leave is granted

1. The Respondent says that it would be prejudiced in its preparation for hearing if leave to amend were granted because: 1. the Respondent would need to undertake two further assessments of the Amended DA under the ARH SEPP and the Housing SEPP; 2. the Respondent seeks 2 weeks to prepare its amended SOFC including time to renotify the Amended DA and consider any submissions; 3. joint conferencing has not commenced, and joint reports were due 22 March 2023 which cannot be complied with; and 4. the Applicant has given no explanation for the delay in seeking leave to amend in the circumstances of this matter, including that it has been on notice of the Respondent's position since 11 May 2022, the SOFC filed 20 December 2022 and the s 34 conference 10 February 2023.
2. I do not accept that the Respondent would suffer genuine prejudice in its preparation for hearing and consider that a compressed timetable can ensure the matter is ready for hearing on the dates allocated. The Respondent submitted at the first return of the motion that the hearing dates could be maintained and there was a difference between the parties on the intervening timetable. The Applicant sought an amended SOFC within one week and the Respondent sought two weeks including renotification, which from the hearing of the motion would be 3 April 2023. The Respondent has already prepared its SOFC on the basis that the DA fails to comply with the Housing SEPP, and in the alternative the merit issues with the DA should the ARH SEPP apply. I consider that it is reasonable to make the consequential order that the Respondent be given an opportunity to amend its SOFC, I do not consider that two weeks is warranted. I also consider it is reasonable for the Respondent should it wish to renotify or inform the community of the Amended DA, however I consider that does not need to delay the amended SOFC and any submissions on the Amended DA can be filed by the Respondent prior to the hearing.
3. The Respondent has now had the Amended DA package since 13 March 2023 and the further material since 16 March 2023. I consider that an amended SOFC could be filed within 7 days by 6 April 2023, and then joint reports be filed within a further 7 days, given the public holiday by 14 April 2023. I appreciate this is a tight timetable, however the parties and their experts have been on notice of the Amended DA since at least 13 March 2023 and the Court would expect them to be available in the lead up to the hearing commencing 19 April 2023.
4. Any delay in the Applicant filing its motion since the s 34 conference on 10 February 2023 is limited and is not in my view sufficient to dissuade me from granting leave to amend.

Orders

1. I am satisfied to grant the Applicant leave to amend and so I grant the motion.
2. I am satisfied that the proposed amendments are more than minor and that the usual order for costs thrown away be made under s 8.15(3) of the Environmental Planning and Assessment Act 1979.
3. I have considered appropriate consequential orders in response to the parties' submissions, being the amended SOFC by 6 April 2023 and joint reports by 14 April 2023. However, there may well be further consequential amendments to the Court timetable for hearing, and as such the matter should be listed for directions hearing for any further orders.
4. The Court orders that: 1. The Notice of Motion is granted. 2. Order 3 and 5 of the Notice of Motion are granted, that: 1. The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Georges River Council as consent authority, approves pursuant to clause 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending Development Application No. DA 2022/0041 to include the following material filed with the Court: Tab Title Issue Date Amended Plans Architectural Plans, prepared by Pyramid Consulting Pty Ltd: J 6 March 2023 i. Cover Sheet and Drawing Registry, Drawing No DA01 J 6 March 2023 ii. Basement Floor Plans, Drawing No DA02 J 6 March 2023 iii. Site & Ground Floor Plan, Drawing No DA03 J 6 March 2023

5.                 iv. First & Second Floor Plans, Drawing No DA04                                          J      6 March 2023
                   v. Third Floor & Roof Plans, Drawing No DADS                                             J      6 March 2023
                   vi. Elevations 1, Drawing DA06                                                           J      6 March 2023
                   vii. Elevations 2, Drawings                                                              J      6 March 2023
                   viii. Section AA, Drawing No DA08
                   Area Calculation Sheets prepared by Pyramid Consulting Pty Ltd:                          C      1 March 2023
   

6.                 i. Area Calculation Sheet, Drawing No CA01                                               C      1 March 2023
                   ii. Room Size Calculation Sheet, Drawing No CA02
                   Survey Report by Jackson Surveyors Pty Ltd:
   

7.                 i. Lot 1 DP 503714                                                                       -
                   ii. SP 30199
                   iii. Part Oxford Street Mortdale, Showing Building Setback
                   Elevational Shadow Drawings by Pyramid Consulting Pty Ltd:
   

8.                 i. Drawing SD04 - 9am & 10am                                                             B      9 March 2023
                   ii. Drawing SD05 - 11am & 12pm
                   iii. Drawing SD06 - 1pm
   

9.                 Erosion and Sediment Control Plan by L&C Building Design Pty Ltd - Drawing SWS           B      8 March 2023
                   Stormwater Plans prepared by L&C Building Design:                                        B      8 February 2023
   

5A. i. Basement 1 Stormwater Plan, Drawing No. SW1 C 8 February 2023 ii. Ground Floor/Site and Roof Stormwater Plan, Drawing No. SW3 Reports and Documents 6. Acoustic Report by Dan Dang of Acoustic Consulting - 10 March 2023 Engineers 7. Access Report by Alexander Freixas - 8 March 2023 8. Operational Plan of Management prepared by Angelica Wu - 8 March 2023 9. BCA Capability Report prepared by Rodger Dowsett - 8 March 2023 10. Social Impact Statement prepared by Anthony Larkings - 8 March 2023 11. Waste Management Plan prepared by Dickens Solutions - March 2023 12. Arborist Report prepared by Ross Jackson - 8 March 2023 13. Builders Contract Quote letter prepared by Rahmy Hanna of Civil Engineered Construction - 9 February 2023 14. Carpark and Driveway Certification prepared by Benny Chen of Motion Traffic Engineers 1a February 2023 15. Statement of Environmental Effects prepared by Philip North of Weir Phillips - 12 March 2023 16. Request to Contravene a Development Standard under Clause 4.6: Lot Size - 10 March 2023 17. Geotechnical Investigation Report of Foundation Earth B February 2023 Sciences

1. Costs as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 1. The matter is listed for Registrar's Directions Hearing on 31 March 2023.

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. Decision last updated: 02 May 2023