Rose Bay Afloat Pty Ltd (Formerly Known As Titanic Floating Restaurant Pty Ltd) v Woollahra Council & Anor.

Question 2: Are the amended plans of the proposed development so different from the original plans accompanying the development application as to constitute a new development application?

The parties have addressed this question upon the basis that the relevant law is propounded in my judgment in Ervin Mahrer v Strathfield Council (No 2) (2001) 115 LGERA 259 where I held that the power to amend or vary a development application conferred upon a consent authority by cl 55 of the Regulation was, by virtue of the LEC Act, s 39(2) available to this Court, in exercising its statutory jurisdiction of hearing and disposing of a planning appeal.

I also held that the true scope and ambit of the statutory power conferred by cl 55 of the Regulation was to permit a development application to be changed or altered resulting in an alteration, variation, or modification to the proposed development (see at 279) and that there was no legitimacy in superimposing upon that understanding of the scope and ambit of the statutory power any qualification that the change be "not radical" or "not substantially different" (see at 281).

For completeness, at 283/284 I also contemplated a meaning of the statutory power of amendment that was circumscribed or delimited so as to permit only an amendment "which did not convert the proposed development into something substantially different" or "fundamentally different in character" or "radically transformed".

If I were to apply to the primary facts of the present case my principal holding in Ervin Mahrer as to the scope and ambit of the statutory power of amendment or variation conferred by cl 55 of the Regulation, I would unhesitatingly conclude that the amended development proposal was relevantly an alteration, variation or modification of the original proposal.

If I were to apply to the facts of the present case, the more circumscribed scope and ambit of the statutory power, as contemplated in Ervin Mahrer, I would likewise conclude that the amended proposal was not (i) substantially different from the original proposal or (ii) fundamentally different in character from the original proposal and (iii) did not radically transform the original proposal.

Accordingly, I would answer this question in the negative

Question 3: Has the landowner's consent been granted to the Applicant's amended development application?

Simply as a matter of fact, there is no evidence that the Waterways Authority has granted any consent to the Applicant's proposed amended development application.

However, as a matter of law, it may be that the principle enunciated in the Royal Motor Yacht case operates in relation to the landowner's consent granted to the lodging by the Applicant of the original development application so as to give it an additional operation in respect of any amendment or variation to that development application.

In Reeson Cripps CJ, citing the Royal Motor Yacht Club case, held that once an owner's consent had been given for an application for development consent, "any amendments or modifications with respect to that development do not require the further consent of the owner". In holding that that was the discernible intention of the legislation, his Honour referred to s 102 of the EP&A Act, which then allowed a development consent to be modified without the mandatory requirement that the consent of the owner of the land be given. (In this respect, it is to be noted that the current legislation now requires a modification application under the EP&A Act, s 96 to be made with the written consent of the land owner: vide cl 115(1)(h) of the Regulation).

In his later decision in Wharf 11 Pty Ltd v Sydney City Council (unreported 15 February 1991) Cripps CJ had to decide whether the Court was precluded from granting development consent in a pending planning development appeal because the Maritime Services Board, which as land owner had consented to the lodging of a development application, subsequently notified the Council that it no longer consented to the development application.

In deciding that the Court was not so precluded by that circumstance, Cripps CJ adopted the same reasons that I had given for my decision in the Royal Motor Yacht Club case.

His Honour then expressed the following opinion on the legislative purpose of requiring landowner's consent to be given to a development application made in respect of land not owned by the Applicant: The legislation provides that a development application must be accompanied by the consent of the owner of the land on which the development is to take place. It appears to be assumed that the legislative purpose will be frustrated and that owner will be badly dealt with if they are not permitted to terminate the development consent process by withdrawing consents. A development consent raises a regulatory prohibition, namely, that development cannot be undertaken unless consent is given by a local authority. A development consent does not authorise development. Generally speaking, the process is not concerned with relations between owners and other people who wish to implement the development consent. The fact that a development consent runs with the land does not carry with it the notion that once a development consent has been granted the development can be undertaken on the land against the wishes of the owner. The submission suggesting a hardship to an owner by the Court determining that once his consent has been given it cannot effectively be withdrawn dissolves when the true nature of a development consent is understood.

I would respectfully agree with that opinion, especially in its differentiation of the rights of the landowner (i) to consent to another person lodging a development application; and (ii) to ultimately determine whether development sanctioned by a development consent may be carried out on the land. The EP&A Act protects only the former right of the landowner, the latter right being adequately protected by the law of real property.

Since, in view of my answer to the next question, it is not strictly necessary for me to determine whether the consent of the Waterways Authority operates additionally in respect of the proposed amended development application, I will reserve the question and subject to that reservation, I would hold that the Waterways Authority has not granted consent to the Applicant's proposed amended development application.

Accordingly I would answer the question as follows:

Subject to the operation in law of the consent granted by the landowner to the lodging of the development application, the landowner has not consented to the amended development application.

Question 4: Is the consent of the landowner required under the Regulation to the Applicant's proposed amended development application?

In my judgment, it is clear that there is nothing in the express provisions of the EP&A Act or the Regulation that requires landowner's consent to an amendment or variation of a development application granted pursuant to cl 55 of the Regulation.

There is an express requirement for landowner's consent to the lodging of a development application by a person who is not the owner of the land to which the development application relates (vide cl 49) and there is a similar requirement for landowner's consent in respect of an application to modify a development consent where the applicant is not the "owner of the land on which the development is to be carried out" (vide cl 115(1)(h).

In contrast to these express requirements, cl 55 imposes no such or similar requirement. Instead, it permits "the applicant" to amend or vary a development application (but only with the agreement of the consent authority)

There is, in these circumstances, no justification, to seek to imply into the entitlement vested in an applicant that is created by cl 55, a requirement for land owner's consent in a case where the applicant is not the owner of the land to which the development application relates.

Nor do I think that there is any legislative gap or omission in cl 55. On the contrary, the Regulation appears to have been drafted in recognition of the principle established by the decisions of this Court that I have earlier referred to (commencing with the Royal Motor Yacht Club case) that where a landowner has relevantly consented to the lodging of a development application in respect of its land, it is to be taken as intending the full development assessment process or course contained in the EP&A Act, Part 4 and Part 6 of the Regulation, to apply to that development application. Such process or course clearly includes the amendment, or variation of the development application by the applicant, in accordance with cl 55 of the Regulation.

For all of the foregoing reasons, I answer this question in the negative. F. CONCLUSIONS AND ORDERS

It follows from my determinations of the reformulated questions of law that the Applicant's proposed amended development application falls within the scope and ambit of the power of amendment or variation conferred by cl 55 of the Regulation and that it is within this Court's competence and jurisdiction to permit the Applicant's development application to be so amended and if so permitted, to entertain the amended development application in the present class 1 proceedings, notwithstanding the absence of any specific consent of the Waterways Authority to that amended development application.

For all of the foregoing reasons, I make the following orders -

1. The Waterways Authority be joined as a party in respect of the separate hearing of the preliminary questions of law raised by it and by the Council.

2. The question of joinder as a party otherwise than is provided by Order 1 is reserved with liberty to apply on 3 days' Notice

3. The preliminary questions of law as reformulated be determined as follows:

Question 1 - Is the power conferred by cl 55 of the Regulation available in a case where the land to which the amended development application relates is different from the land to which the original development application relates? Answer - Upon the found facts of the present case, the question does not truly arise and does not require to be answered.

Question 2 - Are the amended plans of the proposed development so different from the original plans accompanying the development application as to constitute a new development application? Answer - No

Question 3 - Has the landowner's consent been granted to the Applicant's amended development application? Answer - No - subject to reserving the question as to the operation in law of the consent granted by the landowner to the lodging of the development application.

Question 4 - Is the consent of the landowner required under the Regulation to the Applicant's proposed amended development application? Answer - No.

4. To the extent that any of the preliminary questions as originally formulated may require further determination beyond that provided in Order 3, liberty is granted to apply on 3 days' notice.

5. The determination on the merits of the Applicant's Notice of Motion seeking leave to rely upon the amended development application is reserved with liberty to restore on 3 days' notice.

7. Substantive proceedings are stood over to Registrar's callover on 3 December 2002.

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.