Reid v Woollahra Municipal Council

Sections 37 and 38 of the EPA Regulation 2021 provide the same power as cl 55 of the EPA Regulation 2000

1. It is jointly agreed by the parties that the relevant powers by which to make an application to amend a development application, and to determine such an application are contained in s 37 and s 38 respectively, of the EPA Regulation 2021.
2. At the outset, it is of importance to establish if ss 37 and 38 of the EPA Regulation 2021 are equivalent to the power previously contained in the now repealed cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). This is critical for the assessment of when the "final determination" is taken to be when on appeal to the Court and in considering the scope of the power in s 38 of the EPA Regulation 2021 to approve an application to amend a development application.
3. Section 37(1) of the EPA Regulation 2021 provides: "An applicant may, at any time before a development application is determined, apply to the consent authority for an amendment to the development application."
4. Section 38 of the EPA Regulation 2021 provides: "(1) The consent authority may, through the NSW planning portal, approve or reject an application for an amendment to a development application submitted under section 37. … (4) A requirement to use the NSW planning portal under this section does not apply if the development application is subject to proceedings in the Court."
5. Relevantly, the power to amend a development application as contained in cl 55(1) of the EPA Regulation 2000 provided: "(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."
6. I am invited to consider that these regulations ss 37 and 38 of the EPA Regulation 2021 are the equivalent power to the former cl 55 of the EPA Regulation 2000. The parties suggest I can apply the reasoning of the authorities relating to cl 55 of the EPA Regulation 2000 to this determination and submit the power and scope is the same.
7. I accept that this is the appropriate course. While the EPA Regulation 2021 separates out the steps of "application" in s 37 and "determination" in s 38 for an amendment to a development application, the Table of Concordance to the EPA Regulation 2021 demonstrates these are corresponding regulations to the former power in cl 55 of the EPA Regulation 2000. To that end, understandably, the parties tendered authorities referencing the scope and power of cl 55 of the EPA Regulation 2000, but no authorities expressly relating to the power under s 38 of the EPA Regulation 2021.

The Court's powers on appeal to exercise the consent authority's functions under s 38 of the EPA Regulation 2021

1. Having dealt with the comparable regulations, I turn now to the Court's powers on appeal to exercise the consent authority's functions under s 38 of the EPA Regulation 2021. It is the Council's position that this power is not available to the Court, as this application to amend the development application was not made pursuant to the power in s 37(1) of the EPA Regulation 2021.
2. The Council submitted, by reason of the words "at any time before a development application is determined", there is no power for the applicants to make an application to amend their development application, as the Woollahra Local Planning Panel had actually determined to refuse the development application on 20 July 2023, and therefore this application falls outside the time "before" the development application was determined. The Council argued this would preclude the applicants from applying to the Court to amend their development application.
3. The Council submitted the Court's power to grant leave under s 38(1) is thereby limited by the wording of s 37(1), as the Court in exercising the consent authority's functions under s 38 of the EPA Regulation 2021 is only able to determine an application "submitted under section 37".
4. The applicants disputed this reading and maintained there is power pursuant to s 37(1) to apply to the Court to amend the development application on appeal. The applicants submitted a reading which limits any applicant from applying to amend their development application to only where the appeal to the Court was (and remained) against a deemed refusal would ignore the operation of s 39(2) of the LEC Act and lead to an absurdity of outcome.
5. I reject the argument of the Council that the applicants have no power to make an application to the Court on appeal to amend a development application. To read s 37(1) as preventing any applicant from applying to amend a development application in circumstances where there has been an actual refusal by a consent authority is to misunderstand the Court's power in re-exercising a consent authority's functions when an appeal is before the Court.
6. Section 39(2) of the LEC Act provides: "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."
7. This is also similarly found in s 8.14(1) of the EPA Act (previously s 39(6A) LEC Act): "In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal."
8. The Council's proposed reading of ss 37 and 38 of the EPA Regulation 2021 disregards the express provision of the Court's powers on appeal found in s 39(2) of the LEC Act and s 8.14(1) of the EPA Act and represents a departure from a fundamental principle of statutory interpretation, including reading words in their context and adopting a construction which would promote the purpose or object underlying the provision: s 33 of the Interpretation Act 1987.
9. Section 8.7 of the EPA Act vests jurisdiction in the Court to hear and dispose of appeals under that section: s 16(1) of the LEC Act. The Court hears and disposes of appeals under s 8.7 of the EPA Act in Class 1 of its jurisdiction (s 17(d) of the LEC Act) whereby the Court undertakes a merits review, metaphorically standing "in the shoes" of the consent authority considering the subject development application de novo: see Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council (2009) 170 LGERA 162; [2009] NSWCA 300 at [35].
10. Under former cl 55(1) of the EPA Regulation 2000, the "time" before a development application is determined was held to be up to the date that the development application is finally determined by the Court, exercising the functions of the consent authority, on appeal: The Next Generation Pty Ltd v Independent Planning Commission [2022] NSWLEC 16 at [99]. I find this is the same "time" in s 37(1) of the EPA Regulation 2021.
11. It has been found in respect of cl 55(1) of the EPA Regulation 2000, the Court had this power to give a consent authority's agreement to a development application being amended or varied by an applicant under the previous regulation: see AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; (2021) 247 LGERA 318; [2021] NSWCA 112 at [258]; and the reasoning of Preston CJ in Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28 at [150]-[151]. I accept this is the same when exercising the function of s 38(1) of the EPA Regulation 2021. Section 38(1) of the EPA Regulation 2021 expressly gives the consent authority the function of determining an application to amend a development application made pursuant to s 37(1). By operation of s 39(2) of the LEC Act, the Court on appeal exercises this function of the consent authority under s 38(1) of the EPA Regulation 2021 to determine an application for an amendment to the development application that is subject to proceedings in the Court.
12. This conclusion is also supported by s 39(5) of the LEC Act, as the decision of the Court on the appeal is substituted for the decision of the consent authority and is deemed to be the "final decision" of the consent authority: Janlz Constructions Pty Ltd v Randwick Municipal Council [1976] 2 NSWLR 427 at 429; Ku-ring-gai Council v Bunnings Properties Pty Ltd at [154].
13. Thus, I find there is power, pursuant to s 37(1) for the applicants to make, and pursuant to s 38(1) for the Court to determine, an application to amend a development application while an appeal to the Court is on foot and prior to its final determination, by reason of s 39(2) of the LEC Act.

Does the current application to amend have the effect of constituting a fresh application before the Court?

1. Having dealt with the Court's powers on appeal, I turn now to the substantive question of whether the nature of the amendments sought to the current application, submitted under s 37 of the EPA Regulation 2021, have the effect of constituting a fresh application, thereby precluding their approval.
2. With respect to the scope and extent of the power to determine an application to amend a development application, cl 55 of the EPA Regulation 2000 has been subject to much judicial consideration, and as above, I am satisfied to apply the reasoning of the authorities referring to former cl 55, to the current s 38 for the purposes of this determination.
3. One limit on the power available under cl 55 of the EPA Regulation 2000, now s 38 of the EPA Regulation 2021, has been consistently recognised and is agreed between the parties, namely, that the Court has no jurisdiction to entertain an original or "fresh" development application: Orico Properties Pty Ltd v Inner West Council [2017] NSWLEC 90 at [8]; and Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155 at [6].
4. The applicants submit the Court would adopt the approach of Jagot J in Radray Constructions Pty Limited v Hornsby Shire Council, noting the two questions which the Court must be satisfied of when considering whether leave should be granted to amend a development application, namely: 1. Is the power available as a matter of statutory construction having regard to its scope and the proposed amendments; and 2. Should the power be exercised on discretion?
5. The applicants further submit, consistent with the approach in Radray Constructions Pty Limited v Hornsby Shire Council, the three "clear principles" established by Robson J in Orico Properties Pty Ltd v Inner West Council at [10], applying cl 55 of the EPA Regulation 2000, should be applied now in respect of s 38 of the EPA Regulation 2021: "(1) The power to amend is "beneficial and facultative" so as to enable an applicant to respond to any issues identified, and to encourage the consent authority to solicit a better outcome (see Ebsworth at [40]). (2) The power to amend is the power to change, not to propose a new or original application. (3) A proposal may change in terms of design and layout, however the focus remains on whether the proposal can answer the overall description and essence of the development as originally proposed."

The nature of the amendments

1. The applicants read the affidavit of Anthony Boskovitz affirmed 22 September 2023, which annexed the amended set of architectural plans at Annexure A, an amended Statement of Environmental Effects dated September 2023 at Annexure C and a Clause 4.6 "Exceptions to Development Standards - Height of Buildings" written request prepared by GSA Planning dated September 2023 at Annexure D.
2. By way of assistance, the affidavit of Mr Boskovitz also annexed a set of comparison plans at Annexure B, depicting a comparison of the current and proposed architectural plans and a list of amendments dated 21 September 2023 at Annexure E.
3. I have closely reviewed the amended architectural plans which (aside from the deletion of a subterranean basement carparking level) make predominantly internal modifications to remove infrastructure including stairs, entrances and lifts to facilitate the change of the type of development and specified purpose of the development from an attached dual occupancy to a dwelling house.
4. The Council advanced in its submissions the fact that a dual occupancy is a separate and distinct use from that of a single dwelling. The Council submitted the amendments would not be able to answer the same description of development as the original application as the "essence" and characterisation would be changed. The Council further submitted that the current development application has been assessed as a dual occupancy, and therefore would need be reassessed having regard to the proposed new use, indicative that this amendment constitutes an original application.
5. The Dictionary to the Woollahra Local Environmental Plan 2015 defines a dual occupancy (attached) to mean "2 dwellings on one lot of land that are attached to each other, but does not include a secondary dwelling", and notes that an attached dual occupancy is a type of dual occupancy. A dwelling house is defined as "a building containing only one dwelling."
6. The applicants submit that the effect of the amendments, while resulting in a change of "typography" of development, are to change to a use so similar so as to have a negligible change in the nature and characterisation of the development, such that the changes would not necessarily result in an original development application.
7. The applicants submit that an attached dual occupancy and a single dwelling fall within an "overarching genus" of residential use and as such amendment from one "low density, low intensity" residential use to another was anticipated by the regulation. Further, it was submitted the uses being so closely related is reflected by the inclusion of these types of residential development within s 34AA of the LEC Act, and similar controls applicable to both types of development within the Woollahra Development Control Plan 2015.
8. In addition, the applicants submit the deletion of the basement level of carparking is responsive to reduce the scope of the excavation works proposed, in an effort to address the contentions raised by the Council and resident objectors and reduce the environmental impact of the development.
9. Finally, the applicants submit that to consider the change in use to a similar use coupled with the relatively unchanged floor plate, height and setbacks reflected in the amended architectural plans as constituting a fresh application, elevates form over substance.
10. I do not accept the submissions of the applicants. The substance of the matter is that if the amendment were to be approved, the amended development application would not be able to answer the description of the development for which consent was sought by the original development application, being the demolition, erection and use of an attached dual occupancy.

The amendments constitute a fresh application

1. When considering what would constitute a fresh development application, one must return to the development for which consent is originally sought. The applicants made their original application for development consent pursuant to s 4.12 of the EPA Act, which provides: "(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development. (2) A single application may be made in respect of one or more of the types of development referred to in paragraphs (a)-(f) of the definition of development in section 1.5(1)."
2. Section 1.5(1) defines "development" as any of the following: "(a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work, (e) the demolition of a building or work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument."
3. Development application DA54/2023/1 seeks development consent for "demolition of an existing attached dual occupancy and construction of a new attached dual occupancy, swimming pools, basement parking and associated siteworks and landscaping". The application therein specifies the "one or more" types of development for which consent is sought, pursuant to 4.12(2) being: 1. demolition of an existing dual occupancy (s 1.5(1)(e)); 2. erection of a building and associated works for the purpose of a dual occupancy (s 1.15(c)).
4. Further, s 4.19 of the EPA Act provides: "A development consent that authorises the erection of a building (but not the use of the building once erected) is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose was specified in the application for development consent."
5. Thereby the application for development consent for the erection of an attached dual occupancy building, for the specified purpose of an attached dual occupancy is limited to that "use" unless otherwise sought in the original development application.
6. The amendments sought to the plans change both physical form of the development, being the development of the construction or "erection" of the building and also the development of the specified "purpose" and "use" of the building (by dint of s 4.19(1)), from an attached dual occupancy to a single dwelling.
7. As such, by the operation of s 4.12 of the EPA Act, I am required to ask, if the applicants were to be allowed to amend their development application to seek to carry out the demolition and erection of a single dwelling building and specify the purpose of the use of that building to be a single dwelling, can that be said to be the same development for which consent was originally sought by DA54/2023/1? The answer is no. It could never answer the description of the original application seeking erection of an attached dual occupancy for the specified purpose of an attached dual occupancy.
8. Conversely to ask the question: If development consent were to be granted for the erection of a dwelling house for that purpose, would the use of such a development as an attached dual occupancy be development for which consent was granted? The answer is no. A consent for a specific development for a specified purpose does not authorise a development for a different use.
9. I accept that the footprint, height, setbacks and floor plate would remain generally unchanged, however, despite this acceptance of the inherent similarity in the external built form but for the deletion of the subterranean basement carparking level, the internal modifications are such that the building would be both erected for a different purpose and the use of the building would be for a different purpose from that which was originally sought, so the amendments proposed could not answer the description of the same development as originally proposed by DA54/2023/1.
10. I also accept that the amendments seek to be responsive to the contentions and objections and aim to reduce the environmental impacts of the development, however, despite the well-intentioned amendments, the effect is that the approval of such amendments would result in a development application that does not answer the description of the original development as proposed.
11. The applicants sought to rely on caselaw which establishes an amendment seeking to "add an additional type" of development within the meaning of "development" under s 1.5(1) of the EPA Act does not necessarily require a fresh development application: Australian Enterprise Holdings Pty Ltd t-as AEH Group v Camden Council (2010) 173 LGERA 226; [2010] NSWLEC 70; Campton v Parramatta City Council [2011] NSWLEC 12. The current amendment application before the Court, however, is distinguishable as this proposed amendment seeks not to add an additional type of development, but seeks to substitute one use of the development for another separate use.
12. The uses are distinct, and as such the question of the similarities of the uses is an irrelevant inquiry. The "genus" of residential development is a classification of the types of residential uses, of which there are many. The use remains distinct, and therefore is unable to answer the description of the original development sought. By the specified purpose of the development as an attached dual occupancy, this remains the only use which may answer the description of the development as originally sought by DA54/2023/1.
13. While recognising the beneficial and facultative power to amend, the power in s 38(1) of the EPA Regulation 2021 to approve an amendment of a development application is constrained by the concept of "amendment". The amendments sought have the effect of constituting an original development application and cannot answer description of the development as originally proposed.
14. As such, I am unable to form the opinion the power to approve the amendments is available as a matter of statutory construction by regard to its scope and the proposed amendments, or that it ought to be exercised on discretion.

Conclusion and orders

1. As a consequence, I must reject the current application for leave to amend the development application.
2. The Court orders: 1. The Notice of Motion filed 22 September 2023 is dismissed. ……………………. Deputy Registrar Orr

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