Radray Constructions Pty Limited v Hornsby Shire Council

JUDGMENT Jagot J: Introduction 1 The applicant, by notice of motion, seeks leave to rely on certain amended plans and reports in this class 1 appeal. 2 The applicant and the Hornsby Shire Council ("the Council") agree that the issue that I must resolve is whether the amended plans and reports specified in para 1 of the applicant's notice of motion fall within the power to amend a development application provided by cl 55 of the Environmental Planning and Assessment Regulation 2000 ("the Regulation"). Statutory Provisions 3 The hearing of the notice of motion proceeded on common ground between the applicant and the Council that: (i) the relevant power is contained in cl 55 of the Regulation, and (ii) the cl 55 power is available to the Court on appeal by reason of s 39(2) of the Land and Environment Court Act 1979. That position is consistent with many decisions of this Court (see, for example, Ross Karp & Associates Pty Limited v Randwick City Council (1999) 106 LGERA 397, Ervin Mahrer and Partners v Strathfield Council (No. 2) (2001) 115 LGERA 259, Urbis Pty Ltd v Sutherland Shire Council [2001] NSWLEC 147, Scouts Australia v Ryde City Council [2002] NSWLEC 56, Port Stephens Veterans and Citizens Aged Care Limited v Port Stephens Council [2002] NSWLEC 242, Rose Bay Afloat Pty Ltd v Woollahra Council and Another (2002) 126 LGERA 36, Elali v Campbelltown City Council (2004) 135 LGERA 85, Waite v Blacktown City Council [2004] NSWLEC 157, Ebsworth v Sutherland Shire Council [2005] NSWLEC 603, Flower and Samios Pty Ltd v Shoalhaven City Council [2005] NSWLEC 620, Kanivah Holdings Pty Limited v Burwood Council [2005] NSWLEC 211, and Chase Property Investments Pty Limited v Blue Mountains City Council [2005] NSWLEC 476. See, in contrast, Dyldam Developments Pty Ltd v Holroyd City Council [2001] NSWLEC 204 which concerns Pt 13 r 16(b1) of the Land and Environment Court Rules 1996 and the need for leave of the Court to rely upon amended plans where proceedings have been fixed for hearing). 4 Clause 55 of the Regulation provides that: (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. 5 Section 39(2) provides that: 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. 6 In Ebsworth v Sutherland Shire Council Talbot J summarised the various approaches that have been taken to applications to amend plans. One limit on the power available under cl 55 has been consistently recognised - that the Court has no jurisdiction to entertain an original development application. The criteria used to determine whether an amendment converts an application the subject of appeal into an original application, however, has varied (see, for example, Ebsworth v Sutherland Shire Council at [33]). 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). The facts 11 The development application was lodged with the Council in or about March 2004. The development was described on the form as "22 apartments with basement car parking for 23 cars - SEPP 5 Housing for Older People". The applicant filed the appeal on 23 December 2004. Three experts were appointed by the Court to provide expert opinions in the areas of planning, access and drainage. The access and planning experts recommended that the plans be amended. The applicant filed and served amended plans on 19 April 2005. Subsequently, by agreement between the parties, the Court appointed a further expert arborist. Directions were made for the filing and service of the opinions of the Court appointed experts and the proceedings were fixed for hearing in October 2005. 12 The Court vacated the hearing dates on 1 September 2005, following receipt of the opinion of the Court appointed drainage expert. The opinion of the Court appointed arborist was then received. As a result of the opinions of the Court appointed experts (drainage and arboriculture), the applicant prepared further amended plans. These are the plans the subject of the notice of motion before me. 13 An addendum to the statement of environmental effects describes the proposed changes to the development (and the reasons for the changes) as follows: The Land and Environment Court Appeal commenced in late 2004 and through its proceedings the court appointed experts raised the following issues: + The need to retain and protect a number of significant trees located in the north-western corner of the site; + The need to increase the extent of the riparian corridor; + The need to adequately address issues of flooding; + The need to improve visual and acoustic privacy to adjoining sites; + The need to improve internal solar access; and + The need to provide adequately sized parking spaces in accordance with the relevant requirements of AS 2890.1. As a result of the issues raised in the appeal, the applicant has prepared a revised scheme. In summary, the changes to the proposed development involve the following: + Altering the mix of dwelling types from 22 x 2-bedroom dwellings to 1 x 1-bedroom, 19 x 2-bedroom and 2 x 3-bedroom dwellings, however, maintaining the same number of dwellings overall; + Reducing the extent of realignment of the existing creek; + Increasing the extent of the riparian area to the creek; + Rearranging the layout of the development to retain and protect the trees on the north-western side of the site, whilst also increasing solar accessibility to the development; + Altering of the construction methods of the buildings to enable a freeboard and greater conveyance of flood waters underneath the proposed dwellings and structures; and + Provision of skylights to all upper level dwellings to improve solar accessibility to living spaces; and + Utilising vehicular and pedestrian access from both street frontages. 14 Many of the changes now proposed result from the fact that the original proposal substantially realigned a creek running through the site. In the original proposal, the creek was shifted towards the eastern boundary, leaving an area of the site free to accommodate a single building with 22 units and a single basement car park accessed from the Anthony Avenue Street frontage. In the amended proposal, a greater proportion of the creek remains in its original alignment (in effect, running through the middle of the site). The consequence is that in order to accommodate the same intensity of development, three buildings are proposed, two to the west and one to the east of the creek. The basement car park is also now in two parts. Access to one part will be via Anthony Street. Access to the other will be via a battleaxe leading to Eyles Avenue. 15 The Council has prepared two tables summarising all (or nearly all) the changes to the proposed development. The changes, including those identified above, are many. They include (but are not limited to) changes to the built form (three buildings instead of one building), the division of the basement car park and the new access from Eyles Avenue, changes to levels, changes to roof forms and changes to elevations. Conclusions Is the power under cl 55 available? 16 Mr Graham for the Council submits that the test to determine whether the changed development converts the application into an original application is whether the proposed development is "substantially the same" as the development the subject of the development application lodged with the Council (prior to its first amendment). That test has been applied in some cases, as the discussion in Ebsworth v Sutherland Shire Council discloses. 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. 17 The amendments or variations proposed by the applicant in this case will lead to a "changed development". The presence and location of the creek on the site inevitably affects the potential built form. Any change in design philosophy for treatment of the creek (as appears to have occurred here by reason of the opinion from the Court appointed drainage expert) would be likely to manifest in changes to the built form. The amended plans reflect changes to the built form that arise from both the different treatment of the creek and a different architectural expression. The proposed development nevertheless remains a self care seniors living development of 22 units on the land at 15 Eyles Avenue and 15 Anthony Avenue, Epping, with ancillary basement car parking, substantial works to the creek and landscaping. The essence of the development thus remains the same. The amendments or variations, although creating a "changed development", have not converted the application into an original application. I do not consider the changed development depicted in the amended plans, having regard to the particular circumstances of this case, fall outside the scope of cl 55. 18 Accordingly, I am satisfied that there is power to agree to the amendment or variation proposed. Should the cl 55 power be exercised in this case? 19 Mr Graham (appropriately in my view) did not raise any discretionary matters that would weigh against granting the applicant leave to rely on the amended plans. I consider this to have been appropriate in this case because: - (i) the proceedings do not presently have a hearing date, (ii) the applicant offered to protect the Council with respect to additional expenses to be incurred by reason of the grant of leave, and (iii) the applicant accepted that the amended plans would have to be re-notified by the Council. 20 Mr Bingham (for the applicant) identified a number of other factors that he submitted weigh in favour of the grant of leave as sought by the applicant. Mr Bingham said that:

(4) The amendments now sought by the applicant are fully resolved in detailed plans accompanied by sufficient information to enable the current proposal to be notified and assessed. 21 I consider the factors identified by Mr Bingham do weigh in favour of the grant of leave to the applicant, subject to appropriate orders protecting the Council from any disadvantage with respect to its cost and expenses. Accordingly, I propose to make order (1) in the notice of motion. 22 Mr Bingham offered that the applicant pay the further costs of the Court appointed experts in assessing the amended plans and the costs of the Council in re-notifying the amended plans. Mr Bingham also offered that the applicant pay the Council the equivalent of the original development application fee. He submitted, however, that the Council had not incurred any costs thrown away by the amendments to this point. 23 It is in the interests of the parties that I quantify the amounts that the applicant must pay to the Council rather than leaving those costs at large. In so doing, I consider that it is appropriate to ensure that the Council is not disadvantaged by the applicant having had the opportunity to respond to the opinions of the Court appointed experts by way of amended plans. There are various ways in which this result may be achieved. On the facts of this case, I prefer to adopt a course which leaves in place the basic arrangement that the parties are to be jointly and severally liable for the future fees of the Court appointed experts (see para 8 of the Court's Practice Direction: Court Appointed Experts, Pt 39 5(2) of the Supreme Court Rules 1970 and the observations of Preston J in Vigor Master Pty Limited v Warringah Council [2006] NSWLEC 140 at [48] to [54]), but which recognises that the Council has paid 50% of the costs of those experts incurred to date in order, in effect, to place the applicant in a position to have had the benefit of that independent advice. I also consider that the grant of leave will necessarily involve officers of the Council in further assessment activities (despite the appointment of Court appointed experts), for which the Council should be compensated in the circumstances of this case. I consider that an amount equal to 70% of the original development application fee should be paid by the applicant to the Council to avoid inappropriate disadvantage to the Council in this respect. 24 Accordingly, I propose to make orders which I consider will fairly and reasonably protect the Council with respect to additional costs and expenses incurred or to be incurred by the Council by reason of the grant of leave to the applicant to rely on the amended plans. 25 Those orders are as follows:

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