S J Connelly Pty Ltd v Ballina Shire Council

Futurespace Pty Ltd v Ku-Ring-Gai Council [2009] NSWLEC 153, 169 LGERA 45 CASES CITED: Globe Capital Properties Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1415 Groeneveld v Wollongong City Council [2009] NSWLEC 149 Nanevski Developments Pty Ltd v Rockdale City Council [2009] NSWLEC 1423

APPLICANT: Mr S Nash SOLICITORS McCartney Young Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr T Cregan SOLICITORS Allens Arthur Robinson

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EX TEMPORE JUDGMENT 1 HIS HONOUR: In this Class 1 development appeal the applicant seeks to amend its development application to rely upon amended plans. The respondent, Ballina Shire Council, consents. In my view it is appropriate to leave to grant leave to amend the development application as shown on those amended plans. 2 Consequential upon the amendments, the parties are agreed, and I accept, that the time for the parties to file and serve expert evidence, which is due tomorrow under an existing direction, should be extended to 10 September 2010.

3 The council seeks an order that the applicant pay its costs pursuant to s 97B of the Environmental Planning and Assessment Act 1979 (EPA Act) which provides: " 97B Costs payable if amended development application filed

(1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal. (3) The regulations may provide for circumstances in which subsection (2) does not apply. (4) This section has effect despite the provisions of any other Act or law." 4 A remarkable feature of s 97B(2) which sets it apart from any other costs provision, so far as I am aware, is that it gives the court no discretion as to whether to order the payment of costs in the case of a non-minor amendment nor as to the terms of the costs order. Consequently, there is potential for unfairness because in some circumstances a costs order in terms mandated by s 97B(2) could be disproportionate to any costs thrown away or additional costs incurred by the council as a result of the amendment. Further, the amendment may produce a better community outcome or be responsive to the council's contentions or result from factors outside the applicant's control such as withdrawal of an owner's consent. Some of those considerations, which are irrelevant under s 97B(2), seem to be present in this case: see [13] and [15] below. 5 The issue is whether the amendments are "minor" within the meaning of s 97B. The statute does not define that term. 6 The onus is on the applicant to show that the amendments are minor.

7 In all the cases analysed below, the Court was not satisfied that the amendments were minor and accordingly ordered the applicant to pay the council's costs pursuant to s 97B.

8 In Groeneveld v Wollongong City Council [2009] NSWLEC 149 at [29] - [32] Preston CJ held: "29 I accept that an assessment of whether an amendment to a development application is minor or not must be undertaken having regard to the context of the development and its location. Hence, in this case, it is relevant to look at the length of road that is being proposed, the site area, and the trees on the site. However, in this case the critical factor is the impact that the amendments to the development, in particular the re-alignment of the road and the new methods of construction of the road, had for the retention or removal of the trees. It is the significant changes to the trees to be retained and removed that causes these amendments to not be able to be classified as minor.

30 It may be accepted that the amendments did not cause an entirely new issue to be raised. Nevertheless, the amendments did require an existing issue to be re-assessed, in particular, they required the re-assessment of the impact the now proposed development would have on the retention and removal of trees. There were material differences for the reasons I have already explained.

31 The amendments cannot be said to be only matters of detail. Of course, the details of the location of the road, the method of construction and the identity of trees to be removed or retained, have altered by reason of the proposed amendments. However, these changes are of significance for the reasons that I have given. It is not to the point to say that the development still remains, in broad terms, the subdivision of land, the carrying out of associated works including construction of a roadway, and the removal of trees. Of course, that is true but that is not an answer to whether the amendments are minor. The concept of a minor amendment cannot be restricted to one which involves the retention of the same concept.

32 The fact that the amendments do not require re-notification is, in my opinion, an irrelevant consideration in determining whether or not the amendments should be classified for the purposes of s 97B (1) as minor amendments. The requirement for re-notification will vary from council to council depending upon the applicable legislative and policy instruments applying in the local government area." 9 In Futurespace Pty Ltd v Ku-Ring-Gai Council [2009] NSWLEC 153, 169 LGERA 45 at [42] Pepper J concluded that the following principles may assist in determining whether amendments are "minor" for the purpose of s 97B (omitting citations): "(a) first, the question of what is 'minor' is one of fact and degree; (b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development; (c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor; (d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor; (e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor; (f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor; (g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor; and (h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative." 10 In Nanevski Developments Pty Ltd v Rockdale City Council [2009] NSWLEC 1423 at [10] Acting Registrar Gray held: "In these proceedings, I accept that individual changes made to the internal layout relate only to mere detail. However, the cumulative effect of those amendments results in changes in the number of car spaces, the number and nature of facilities and amenities provided for residents, the number of beds for residents, the number of staff and the facilities provided for the staff. Whilst they may not result in any significant re-assessment by the Council's town planner in relation to the compliance of the proposed development with planning controls, I nonetheless accept that these changes will require the Council to assess the plans and re-consider aspects of the development for which the applicant seeks approval. The cumulative nature and extent of those changes therefore renders them something other than a minor amendment. Simply because the amendments do not change the building footprint or the externality of the building does not make them a 'minor amendment'." 11 In Globe Capital Properties Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1415 at [50] - [51] Tuor C and Dixon C held: "50 This is a development application for a residential flat building with two buildings. After the amendments, the concept is the essentially the same a residential flat building comprising two buildings with the same number of units, a reduction in the number of bedrooms from 88 to 87, the amendments do not impact on the floor space ratio (FSR) and the footprint of the development remains the same, the same number of car spaces are provided, and there is a reduction in the width of the footpaths. However, it is not to the point to say that the development still remains, in broad terms the same…

51 …In the context of this appeal the amended development application cannot be said to propose changes to the original application such as to be described as minor amendments." 12 In the present case, the development application is for the change of use of most of the residential strata lots in a hotel from "short term" to "permanent and short term" accommodation. The physical changes currently proposed are minor. 13 The amendments have been occasioned because the owners of two of the lots in the hotel have withdrawn their consent to the proposed development. The amendments are shown on the amended plans annexed to the affidavit of Michael Young of 31 August 2010. The amendments marked in blue on those plans indicate the areas to be deleted from the proposed development, being areas owned by the owners who have withdrawn their consent. The blue areas include six parking spaces.

14 The area marked in red on the amended plan in annexure A to the affidavit is an addition to the proposed development and is apparently intended to accommodate a booking service for the proposed facility additional to the booking service owned and operated by one of the owners that has withdrawn its consent. There is also an area marked in red on the plan at annexure C to the affidavit, however it is not really additional and can be put to one side for present purposes because it was proposed in the environmental impact statement accompanying the development application and was left out of the earlier plans by mistake.

15 A letter from the council's solicitors to the applicant's solicitors of 8 September 2010 assessed the costs of re-assessment of aspects of the application as a result of the amendments in the sum of $5,000 (and also sought the payment of legal costs of the applicant's notice of motion).

16 It is common ground that the amendments do not require re-notification. While the overall concept of the development has not changed and no entirely new issue is raised, I accept the council's submission that the amendments require the council's expert witness to significantly reassess the parking and traffic issues and that the council will need to reassess the economic impact of the proposed development in light of the additional booking service.

17 Having regard to their overall effect, on balance I am not satisfied that the amended plans constitute a minor amendment to the development application.

18 Therefore, s 97B compels me to make a costs order in favour of the council in the terms set out in s 97B(2).

ORDERS 19 The orders of the Court are as follows:

1. Leave granted to the applicant to rely upon the amended plans attached to its notice of motion filed on 1 September 2010. 2. Order the applicant to pay the respondent's costs incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal. 3. Order 4 of the orders made on 19 July 2010 is vacated. 4. The parties are to file and serve any expert evidence by 10 September 2010.

16/09/2010 - added reported citation 169 LGERA 45 - Paragraph(s) 9 & coverpage

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