Seyffer v Shoalhaven City Council

4 In July 2004 the council refused the first development application.

5 In June 2005 Flower & Samios Pty Ltd lodged an appeal in this Court against the council's refusal (proceedings No 10587 of 2005). In September 2005 the appellant in those proceedings moved the Court, pursuant to cl 55 of the EPA Regulation, to amend the first development application to rely upon amended plans. The amended plans included on-site sewage treatment and disposal in lieu of connection to the town supply system. On 3 November 2005 Talbot J dismissed the motion, holding that the proposed changes were so major as to fall outside the cl 55 amendment power: Flower and Samios Pty Ltd v Shoalhaven City Council [2005] NSWLEC 620. His Honour held at [25] - [30]: 25. If the effect of a proposed amendment is to convert the application into an application for a different development either in fact or by degree of change then the court cannot entertain it as it has no power to accept and consider a new development application. Even where the variations proposed can be technically regarded as appropriate for consideration as amendments, nevertheless a discretion remains whether to grant consent. The exercise of the latter discretion is not raised here as part of the council's argument if the Court decides that the changes can be rightly regarded as amendments. Nevertheless, as I have already stated, where essential elements are to be altered in a way that calls for a consideration of a whole set of novel criteria not previously addressed then it can be appropriate to regard the proposed changes as something more than amendments that fall for consideration within the ambit of cl 55.

It is, in my opinion, simply too glib to accept that the proposal before and after the changes are made is a retirement village. The original application was for retirement housing and ancillary facilities confined to an area of 26.17 hectares. That concept is maintained in so far as the land to be utilised for the construction of housing is concerned.

Water and sewerage services were to be facilitated by connection to an existing system outside of the development. The additional works now foreshadowed lead to a major conceptual change in respect of water reticulation, supply and storage, which arguably may not itself lead to a reassessment of essential elements of the application.

However the collection, treatment and disposal of sewage and effluent involve a totally new and additional category of works that demand separate assessment and consideration independently of the retirement village itself. Wider issues than the impact and consequences of the provision of housing for older people and people with a disability arise to an extent that dramatically changes the context of the consideration required under the EPA Act.

The argument that the treatment works might be technically subsumed in the SEPP 5 development for the purpose of determining whether the application must be assessed as designated development does not change or confine the nature and extent of the assessment that will arise if the proposal for on site treatment and disposal proceeds. In that context I regard the changed proposal as being, in effect, a new development and not capable of being dealt with as an amendment or variation contemplated by cl 55 of the Regulation.

I therefore refuse to agree to the amendments as proposed and dismiss the application to substitute the so-called amended plans for the original plans. The exhibits may be returned.

6 On 23 November 2005 the applicant lodged a document purporting to be a development application with the council for an on-site water cycle management system including on-site sewage treatment on the property (on-site system). It is convenient to call this the second development application although the issue is whether that is its proper characterisation. It was accompanied by a Statement of Environmental Effects for a "Proposed Water Cycle Management System", a report prepared by Martens Consulting Engineers for a "Concept Water Cycle Management Strategy", and a cheque for the application lodgement fee. The Statement of Environmental Effects recounted the unsuccessful application to amend before Talbot J and stated: "The Court rejected that application, in effect necessitating this separate development application for the system". This on-site system is not identical with, but is similar in nature to, the system the subject of the amendment application before Talbot J.

7 On 16 December 2005 the council wrote to the applicant, stating among other things: … having reviewed the application, Council is of the view that it is not a competent application in that it is not in truth an application for development but, rather, it is a further attempt to amend the application which is refused and which is presently before the Court. … Accordingly, Council declines to process the application in its present form on the grounds that it lacks power to approve it. Your application, the supporting documents and lodgement fees are accordingly returned. A second reason identified in the letter for rejecting the competency of the application was that it was for designated development. Although that was originally pleaded in these proceedings, it is no longer relevant because it is not pressed.

8 On 22 December 2005 the applicant's solicitor wrote to the council, stating among other things: There is absolutely no basis for the Council's assertion that the development application is not competent. It is trite law that more than one development application can be lodged in respect of a parcel of land. …

Accordingly, the purported rejection of the development application is of no effect, the application remains pending before the Council at law and the Council is thus lawfully bound to assess and determine the application.

To that end, please find enclosed, by way of return, the documentation lodged in support of the development application, along with the Council's application lodgement fee. It is noted that the Council has retained the development application form. Accordingly, accompanying the attached documentation is a copy of this form. The letter threatened legal proceedings unless the council communicated within 21 days that it would proceed to assess and determine the application in accordance with its statutory obligations.

9 By facsimile dated 22 December 2005 to the council, the applicant's solicitor stated among other things: "Irrespective of the proposal for the on-site treatment of sewage and the provision of water which is the subject of the development application, I am also instructed that there are other options for the disposal of sewage utilising the Shoalhaven sewerage reticulation system. Further, in terms of the provision of water to the development, I am instructed that my client is advised that the development could be provided with potable water from the Shoalhaven water scheme".

10 Following further correspondence between the parties' solicitors, the council's solicitor stated, among other things, in a letter dated 23 January 2006: I do not disagree that Council has power to receive and determine more than one development application in respect to the same parcel of land. However, where, as is the case here, the application, coloured as a fresh development application, is in fact nothing more than a sham to avoid difficulties arising from an earlier decision of the Court, the Council can lawfully refuse to determine the application.

Mr Justice Talbot held in his reasons for decision when refusing your client's motion to amend the application presently before the Court (see paragraph 25 of the Judgment), that if the effect of a proposed amendment is to convert an application into an application for a different development then the Court could not entertain it as it has no power to accept and consider a new development application in the guise of an amendment application. The same principle applies in respect of a purported new application which, in truth, is no more than an attempt to amend an application.

The Statement of Environmental Effects accompanying the new development application states that the development is ' ancillary ' to the SEPP 5 development and that the ' sole purpose ' of the new application ' is to service the SEPP 5 development '. That is, absent the SEPP 5 development, there is no purpose for the development the subject of this new application.

If that be right, then this new application relies, for its efficacy, upon the existence of the SEPP 5 development. However, that development has not been approved and the previous attempt to amend the application to introduce the type of development the subject of this new application has been authoritatively determined against your client.

Alternately, if, as you say, the application is in fact a ' stand alone ' application (contrary to the comments made by the applicant and your consultant in the Statement of Environmental Effects), then if that be the correct interpretation of the nature of the application now made to the Council then, considered as a stand alone development, the application must clearly therefore be designated development because it seeks approval to development which is captured by Clause 29 of Schedule 3 of the EP&A Regulations. The last point concerning designated development is no longer pressed in these proceedings.

11 On 23 January 2006 the applicant commenced these proceedings. It now presses for the following declaratory relief: 1. A declaration that, by lodgement of development application No. DA 05/3931 for a water cycle management system on Lot 203 in Deposited Plan 883494 (the ' Development Application ') by the Applicant with the Respondent on 23 November 2005, the Applicant has applied to a consent authority for the carrying out of development within the meaning of section 78A(1) of the Environmental Planning and Assessment Act, 1979 (the ' EP&A Act '). 2. A declaration that the purported rejection or return of the Development Application by the Respondent to the Applicant on or about 16 December 2005 is of no legal effect. 3. A declaration that the Development Application may be dealt with by the Respondent as the Consent Authority in accordance with the provisions of the EP&A Act and the Environmental Planning and Assessment Regulation 2000.

THE APPLICANT'S SUBMISSIONS 12 The applicant submits that the second development application is a freestanding development application predicated upon the first development application being granted. It is made under s 78A of the Environmental Planning and Assessment Act (EPA Act) for consent to carry out development, and is to be determined under s 80. Section 80(4) permits a determination excluding a specified part or aspect of the development. The wide powers in s 80(4) recognise that more than one development consent may be required in respect of a development. Similarly, s 80A gives a wide power to impose conditions and s 80A(2) permits the imposition of a condition to the effect that an aspect of a development ancillary to the core purpose is to be carried out to the satisfaction of the consent authority. The wide powers to impose conditions, including conditions pursuant to s 80A requiring modification or surrender of a consent (s 80A(1)(b)) or requiring the modification or cessation of development (s 80A(1)(c)) facilitate the making of more than one development application in respect of the development.

13 The applicant draws an analogy with a development application for a suburban shopping centre which indicates that it is intended to provide carparking for the shopping centre on adjoining land, albeit that land is not the subject of the application. It would be open to the council, or the Court on appeal, to grant development consent to the shopping centre component conditional upon development consent being obtained for development of the adjoining land for the carpark (when, and if, the developer is able to procure the consent of the owners of that land to the lodgement of the development application). Reference was also made to Currey v Sutherland Shire Council (2003) 129 LGERA 223 at [35].

THE COUNCIL'S SUBMISSIONS 14 The council submits that the second development application should be characterised as an application to amend the first development application. The second development application, it submits, is not for a development for which a consent is capable of being granted. The carrying out of the development the subject of the second development application depends not upon the existence of lands or buildings, or even an approved development, but upon the approval of the first development application. The development the subject of the second development application is to form part and parcel of some, but not all, of the development the subject of the first development application. The water and sewage management systems in the first development application are to be displaced and replaced by the water and sewage management systems the subject of the second development application.

15 The council draws an analogy with a development application for a house with a pitched roof, where the applicant subsequently decides to change the roof. It asks: Can a development application be made for just a flat roof by itself? The council says that the notion is absurd and that the development application for a roof alone is, rather, an application to amend the development application for the house.

16 The question, the council submits, is whether a development application for development which is ancillary to the development described in an earlier development application, and which is inconsistent with and purports to amend the development the subject of the first development application, is a competent development application.

17 Although there can be no issue with the principle that there may be more than one development application in respect of one overall development, the difference here, the council says, is the inconsistency between the two applications and the need to amend a development application, not to modify a consent or an existing building. The council submits that Currey's case (above) is distinguishable.

DISCUSSION 18 If the second development application had included the retirement village, then it would have to be characterised as a development application. I understand this to be accepted by the council. The question immediately arises as to why the applicant does not choose to avoid the present dispute by simply lodging a further development application which includes the retirement village and the on-site system. The answer is that on 16 December 2005, cl 19 of Statement Environmental Planning Policy (Seniors Living) 2004 was amended by repealing paragraph (a). The effect of that amendment is that, since that date, a consent authority is prohibited from consenting to a development application for serviced self-care housing on land such as the subject land. Prior to that amendment, cl 19 provided: Development on land adjoining land zoned primarily for urban purposes A consent authority must not consent to a development application made pursuant to this Chapter to carry out development on land that adjoins land zoned primarily for urban purposes unless the proposed development is for the purpose of any of the following: (a) serviced self-care housing, (b) a hostel, (c) a residential care facility. 19 The subject land adjoins lands zoned primarily for urban purposes. Thus, a consent authority cannot consent to a development application for self-care housing on the subject land lodged after 16 December 2005. All this is irrelevant to the determination of the contest before me, but it explains why there is a contest and why it is a contest as to form. It is a contest as to form rather than substance because there is no suggestion that the council, or this Court on a merits appeal, could not have determined the second development application if it had included the retirement village. 20 The issue is one of characterisation. Was the purported second development application in truth an application to amend the first development application? In my opinion, it was not. It was what it purported to be, a development application. My reasons are as follows.

21 Clause 55(1) of the EPA Regulation provides: 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.

22 In Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292, Jagot J recognised that cl 55 does not extend to allowing the Court, on a merits appeal, to entertain an original development application, but held that it ought to be construed so as to give the widest interpretation which its language will permit: at 295 [6], [9]. In determining when a power to amend under cl 55 is available, her Honour rejected the test of whether the proposed development is "substantially the same" as the development the subject of an existing development application, and held at 297 [16]: 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.

23 In the present case, the judgment of Talbot J in Flower and Samios Pty Ltd v Shoalhaven City Council [2005] NSWLEC 620, which I have considered earlier, indicates, and I understand it to be common ground, that the second development application falls outside cl 55. His Honour's judgment contemplated at [28] that a development application could be made in respect of an on-site system: "The collection, treatment and disposal of sewage and effluent involve a totally new and additional category of works that demand separate assessment and consideration independently of the retirement village itself".

24 It is common ground, and I agree, that there may be more than one development application for the same development.

25 The second development application did not purport to seek to amend the first development application. Indeed, the accompanying Statement of Environmental Effects stated that the Court's rejection of the applicant's amendment application necessitated a separate development application for the system.

26 The first development application has not been abandoned. It is alive and pending in the merits review appeal to this Court. It contemplates connection to the town supply system. The applicant's solicitor's facsimile of 22 December 2005, quoted earlier, evidences that the applicant was then contending for "options", being connection to the town supply system or an on-site system. Before me, it was confirmed, on behalf of the applicant, that the applicant was continuing to contend for these options in the alternative in, respectively, the first and second development applications.

27 Section 78A of the EPA Act permits a person to apply to a consent authority for consent to carry out "development". The on-site system contemplated by the second development application, in my view, is within the definition of "development" in s 4 of the EPA Act. That definition is very wide. It includes "the use of land" and "the carrying out of a work".

28 According to the council's submission, the question is whether a development application for a development which is ancillary to the development described in an earlier application, and which is inconsistent with and purports to amend the development the subject of the first development application, is a competent development application. I do not think that the second development application purports to amend the first development application. I accept the applicant's contention that it is intended to press the systems in the first and second development applications as alternatives. Once it is accepted that there can be more than one development application for the same development, it follows that any difference between them may be, in a sense, an "inconsistency". However, that is not, of itself, an impediment to the characterisation of the later one as a development application rather than as an application to amend the earlier one.

29 The council submits, in effect, that there cannot be an independent development application for part of a development where that part of the development is an integral aspect of the development as a whole. The example is suggested of a development application for a house with a pitched roof. The applicant then decides to change the roof and makes a further development application for a flat roof by itself. The council submits that the second development application in this example would be characterised as an application to amend the first development application. This analogy of a disembodied roof in the sky is too far removed, I think, from the present case. One point of distinction is that in the present case the applicant has not decided to change from the town supply system to the on-site system. It is pressing both in the alternative.

30 Potentially, the first and second development applications could be determined harmoniously with each other under ss 80 and 80A of the EPA Act. For example, s 80(4) permits a development consent to be granted for a development except for a specified part or aspect of that development, or only for a specified part or aspect of that development. Sections 80(1)(a) and 80A give a broad power to impose a wide range of conditions. Section 80(3) provides that a development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the condition. It defers commencement of the development consent.

31 Sections 80 and 80A, as well as the staged development provisions of Division 2A, were introduced after Mison v Randwick Municipal Council (1991) 23 NSWLR 734. It has been held that the so called finality principle in Mison does not apply in the circumstances contemplated by such provisions: Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376 at 412 [89] (per Hodgson JA); Patrick Autocare Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWLEC 687 at [22] (Cowdroy J); GPT Re Ltd v Wollongong City Council [2006] NSWLEC 303 at [89] - [90] (Biscoe J). In Mison it was held that, first, there is no consent to a development application if a condition has the effect of significantly altering a development or leaves open the possibility that the development carried out in accordance with the condition will be significantly different to that applied for; and, secondly, that the act of granting consent imports a requirement of finality so that there is no consent if the purported consent leaves for later decision an important aspect of the development which could alter it in a fundamental respect. It also seems artificial to apply the Mison principles in circumstances where a consent authority, or this Court on a merits appeal, is seized of and is simultaneously determining two development applications such as those in the present case.

32 In my view, the applicant is entitled to proceed with its first development application seeking to persuade the Court, at the time of determination, that consent can be given for connection to the town supply system. Equally, the applicant is entitled to proceed with its second development application, to advance its on-site system as an alternative. It is possible that consent may be obtained for the first development application and for the second development application, which would give the applicant a choice as to how to proceed when carrying out the development. It is possible that consent may be given to the first development application except for the connection to the town supply system, contingent upon the second development application being approved. Conversely, it is possible that the second development application could be approved subject to the first development application (with or without the connection to the town supply system) being approved.

33 It is preferable, I think, not to determine this case by reference to whether or not the second development application was "invalid". In Currey v Sutherland Shire Council (2003) 129 LGERA 223 at 231 [35], Spigelman CJ said: "I see very little, if any, scope in this legislative scheme for the concept of a 'valid' application. Citizens are entitled to apply to authorities for whatever they like".

CONCLUSION 34 The applicant has been successful. Costs should follow the event. The council did not dispute that if the applicant were to succeed then the substantive relief should be as claimed in the amended application. Subject to giving the parties the opportunity to address me as to the form of relief, I would propose the following: 1. Declaration that, by lodgement of development application No. DA 05/3931 for a water cycle management system on Lot 203 in Deposited Plan 883494 by the applicant with the respondent on 23 November 2005, the applicant has applied to a consent authority for the carrying out of development within the meaning of section 78A(1) of the Environmental Planning and Assessment Act 1979 . 2. Declaration that the purported rejection or return of the said development application by the respondent to the applicant on or about 16 December 2005 is of no legal effect. 3. Declaration that the said development application may be dealt with by the respondent as the consent authority in accordance with the provisions of the Environmental Planning and Assessment Act 1979 and the Environmental Planning and Assessment Regulation 2000 . 4. Order that the respondent pay the applicant's costs of the proceedings. 5. Liberty to apply on three days' notice. 6. The exhibits may be returned.

35 I direct the parties, by arrangement with the Registry, to list the matter before me within 2 weeks for the purpose of settling the final form of relief.

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