RAMM Investments Pty Limited v Campbelltown City Council

Land and Environment Court (NSW)|2015-08-05|Before: Ms P

Solicitors: Constantine G Pavlis & Co (Applicant) Marsdens Law Group (Respondent) File Number(s): 10275 of 2015

Ex Tempore Judgment

This judgment deals with a notice of motion dated 27 July 2015 filed by the applicant, RAMM Investments Pty Ltd, in respect of its development appeal which is listed for hearing next week on 4 and 5 August 2015.
The appeal relates to a development application for a residential housing project under the State Environmental Planning Policy (Affordable Rental Housing) 2009. It comprises 26 two-storey dwelling houses on land in Minto. The proposal is outlined in the original plans filed with the class 1 appeal (exhibit A).

Council's position

The orders sought by the applicant are opposed by the respondent, Campbelltown City Council. It contends that the amended plans are so different to the original application, the subject of the appeal, that they constitute an original development.
In those circumstances the Court has no power under clause 55 of the Environmental Planning & Assessment Regulations 2000 (Regulations) to order the substitution of the amended plans in the appeal. The applicant must elect to proceed to hearing on the original application or file a notice of discontinuance in the appeal.
Alternatively, should the Court form the view that the amendments are within the ambit of clause 55, then the Council submits that the Court would not exercise its discretion to do so for the following reasons.
Firstly, the applicant has had ample opportunity to address the changes now proposed since the filing of the Council's original statement of facts and contentions in April 2015. It was only after the preparation of the planner's joint report that it elected to file this motion. The fact that the applicant's current town planner cannot support the original application without amendment is not a basis to vacate the hearing date at this late stage or substitute amended plans "in the appeal".
It is now two working days before the hearing and the applicant wants to change its application in a material way and vacate the dates. This is entirely unacceptable.
The Council submits that a change to the application at this late stage is clearly prejudicial to the Council because it has prepared its case on the notified plans and incurred significant expense. It believes the orders sought by the applicant make a mockery of the Court's directions and processes; are unfair to the Council and, are clearly not in the public interest.

Applicant's position

The applicant offers to pay the reasonable expenses incurred by the Council, in respect of the proposed amendments, in accordance with section 97B of the Environmental Planning & Assessment Act 1979 (EP&A Act). And, while the applicant appreciates that this application is late in the process it submits this is largely due to the fact that its original planner has become ill and a new planner has had to be retained. This did not happen until June and, the new planning expert, Mr Brown, has only recently indicated that he cannot support the original application without amendment. This circumstance, coupled with poor legal advice from the applicant's previous Counsel has resulted in this late application to amend the plans and the need to vacate the hearing dates.
I am told that the amended plans are supported by Mr Brown although I have no evidence of that fact. I am told they address the issues identified in the Council's amended statement of facts and contentions dated 3 June 2015 and comments in the planners' joint report which is dated 29 July 2015 and relates to the original plans. Again, I have no expert evidence to that effect.
In the ultimate, the applicant submits that if the amended plans are substituted in the proceedings any future hearing will be much shorter because there will be fewer issues. In those circumstances, it submits the orders sought facilitate the 'just cheap and quick' resolution of the real issues.

Jurisdiction

The parties agree that cl 55 facilitates the amendment or variation of a development application for determination. Furthermore, the Courts have "…adopted a broad approach to both the scope and application of clause 55" at [57] Harkim V Canada Bay City Council [2006] NSW LEC 746. The other relevant authorities include Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292; Ebsworth v Sutherland Shire Council [2005] NSWLEC 603.
The clause contemplates an amendment or variation that may result in a change to the proposed development. The extent of the change authorised by the Regulation either with the agreement of the consent authority or by the Court exercising that function (which does not result in the conversion of the application into an original application) will depend, upon as Justice Jagot states in Radray at [18], the facts of the particular case (including for example the nature of the site and the nature and characterisation of the proposed development). Furthermore, in considering those matters the availability of the power is to be determined having regard to the beneficial and facultative nature of the provision. In Radray the Court considered cl 55 should be given "…the widest interpretation which its language will permit": Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231at [9].
The question as to whether the power should be exercised in a particular case - to allow 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 the time at which the application is made - and the reasons for making the application. It is understood that the test in cl 55 is different to the test arising from an application under section 96 of the EPA &Act.
As to whether development now proposed is an amendment or variation of the application and not an original application is a question of fact.
While cl 55 has been held to authorise a change to the built form, the height of the building, the massing of the building and a reduction in the bulk and scale of a building there can be no comprehensive list of amendments or variations which necessarily fall within cl55. Each case must turn on its own facts and a determination of this factual question requires a comparison of the original application against the proposed amendments and/or variations in order to determine whether the change constitutes a new original application. Only after that question is answered do the discretionary matters need to be addressed.

Are the amended plans an original application?

I have compared the plans filed with the appeal - Revision D dated 29 September 2014 (exhibit A) - with the amended plans, filed with the notice of motion - Revision F dated 27 July 2015 (exhibit B) and, considered the schedule of changes detailed in annexure CGP 10 to the affidavit of Mr Pavlis. Following that exercise, it is my opinion that the amended plans result in a conversion of the application into an original application.
I set out my reasoning below.
The amendments reduce the number of dwellings in the complex by one (from 26 to 25 dwellings) but retain 50% as low cost housing. Therefore, it is fair to say that the development remains a residential development under the SEPP. However, as the Council submits, that is the only similarity between the original application and the amended plans.
In all other respects the amended plans fundamentally change the design and layout of the development which result in an entirely different footprint and appearance.
The 13 semi-detached two-storey buildings originally sited side by side along a gun barrel driveway through the centre of the site have been reconfigured into 3 separate terrace style buildings which are sited along an undulating/curved driveway.
A large communal open space has been inserted between the dwellings numbered eight and nine and, this open space separates the built forms by a distance of 23m.
The visitor car parking that straddled the driveway evenly on each side has been broken up and redistributed over the site.
The built form of the development has been redesigned to mimic a more contemporary vertical appearance. The walls, windows and door opening have been elongated and enlarged and different finishes and treatments have been proposed.
Flat roofs - rather than a hip roof with a gabled feature at the entry of each dwelling - have been incorporated into the design.
The internal configuration of each dwelling has changed and the orientation of some of the dwellings has rotated. The backyards to each dwelling have been narrowed and elongate.
The entry into the development from Collis Place has been substantially reconfigured and now incorporates a centralised waste/bin storage area and new landscaping.
This is an original application.
Unfortunately, not all of the plans have been finally prepared. The applicant has yet to file and serve a detailed amended landscape plan or a final stormwater/ drainage plan (with calculations) or any perspectives or montages of the design. It requires a further seven days from the hearing of this motion to attend to those matters.
I cannot accept on the evidence before me that this is the same development in a contemporary form. Nor do I accept the applicant's criticism of the Council's response as "exaggerated". This is an original application and cl 55 does not authorise its substitution in the appeal.
Even if, these amendments or variations did not constitute a fresh application I would not have exercised my discretion to make the orders sought in this case given the timing of the application - two working days out from the hearing- in circumstances where the applicant has retained its current planner on 22 June. It is too late in the process to seek the substitution of these plans which require notification and a vacation of the hearing dates. The Council has prepared its case on the original application filed and participated in a joint conference and contributed to the joint planning report with the applicant's planner. It has incurred significant expense to address the application before the Court and it is unfair to pull the plug at this stage and give this applicant an inside run to a new hearing date over other applications filed with the Council or appealed to the Court yet to have a hearing date set.
The evidence is that the amended plans were served on the Council on 27 July 2015. The first statement of facts and contentions was filed in accordance with the Registrar's directions on 24 April 2015 over three months ago. While I am told that the original planner became ill and a new planner needed to be retained that happened well before the amended plans were filed.

Conclusion

Clause 55 facilitates the substitution of a changed application not an original application. I find that the changes are so material that they result in the conversion of the application into an original application. I do not have jurisdiction under cl 55 to make the amendments sought.
In the event that I decline to accede to the applicant's Motion, Ms Pearman Counsel for the applicant, indicated that the applicant was likely to discontinue the present appeal. As that course seems probable I will give leave to the applicant to discontinue the proceedings conditionally upon the payment of the Council's costs, as agreed or assessed.
Accordingly, the Court Orders are: 1. Applicant's Notice of Motion dated 27 July 2015 is dismissed. 2. Pursuant to Rule 12.1 of the Uniform Civil Procedure Rules 2005, leave is granted to the applicant to discontinue the proceedings on the basis that the Respondent is not precluded from making an application seeking an order that the Applicant pay the Respondent's costs of the proceedings. Susan Dixon Commissioner of the Court

Amendments 07 August 2015 - Typographical changes 08 September 2015 - Amendments to order 2 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: 09 September 2015

(2006) 145 LGERA 299

(2006) 145 LGERA 292

At a glance

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Judgment (9 paragraphs)

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Cases Cited (4)