Songkal Pty Ltd v Warringah Council

Lots B and C comprise what Mr Hemmings, for the applicant, described (T.13) as an " irregularly shaped " and " very steep " Council reserve, and lot C is that part of the reserve " behind " an electricity substation. Lot C has an area of only 27.3m2 and was rezoned " commercial " in 1988 (T.14). It seems to be generally agreed that lot C is of limited utility for reserve purposes, and that it could be usefully employed to provide a better means of access to lot A than an entrance off Pittwater Road.

The question of vehicular access to lot A has been a key issue in the on-going consideration and evolution of the applicant's proposal, and it was eventually suggested that the applicant acquire from Council a right-of-way over lot C. An agreement to purchase an easement for such a purpose was concluded on 24 May 1999 (doc 42A).

Council has subsequently been advised that that agreement is null and void, inter alia, because lot C is " community land ", but Council has resolved to prepare a new LEP reclassifying it as " operational land ".

The applicant's development proposal has been quite controversial, within Council and in the wider local area, due partly to the involvement of a councillor in the applicant company. I record that, following my reservation of judgment on 31 August, I received, at 4.45pm on that day, an " urgent " fax message of some 5 pages, being described as a " submission " by a " residents organisation representing hundreds of local residents " who " object to this development for many reasons ". I have not read beyond the introductory paragraphs, from which these quotations were taken, but I grant leave to the parties to obtain copies of the fax from the Registry.

Council has engaged independent external planning consultants (Design Collaborative Pty Ltd, and later Scott Carver Urban Planning) to assess the proposal.

What was originally proposed for lot A in April 1997, and what was proposed in late 1999 for lots A plus C, are conveniently compared in the agreed bundle (doc 69) as follows: Statement of Differences 701 Pittwater Road, Dee Why Development Application 1997/103

The major and most obvious difference between the proposals relates to the height. The proposal was increased from 4 storeys to 7 storeys, which is reflected by the increase from 10 to 19 residential units and the floor space ratio increase. The second most significant change relates to the vehicular access, originally proposed from Pittwater Road and amended to gain access from St Davids (sic) Avenue relying on a Right-of-Carriageway across a portion of St Davids Park.

The following table summarises the fundamental differences between the two proposals.

1997 Plans 1999 Amended Plans Height 16 metres 24 metres 4 storeys 7 storeys No. of levels 4-2 residential, 1 office & 8-5 residential, 2 office & (Not including 1 retail 1 retail car parking) Office 600 m2 744 m2 Floorspace Retail 85 m2 145 m2 Floorspace Residential 10 x 2 Bedroom 1 x 3 Bedroom Units 13 x 2 Bedroom 5 x 1 Bedroom Car Parking 25 spaces below natural 32 spaces above and below ground level natural ground level Access Vehicular - Pittwater Road Vehicular - St Davids Ave Commercial - Pittwater Road Commercial - Pittwater & St Davids Ave Residential - Pittwater Road Residential - St Davids Ave Floor Space 2.5:1 4.9:1 Ratio

The Council officers have maintained their recommendation that development consent be refused . The relevant history of the proposal(s)

The applicant's architects, Leffler Simes Pty Ltd (" LS "), lodged with Council a completed DA form (prescribed " Form 1 ") on 29 April 1997, including the signification of owner's consent by the applicant, as the owner of lot A.

It should be noted that the Form 1 did not provide any " description of the development ", and merely referred to the LS letter of 29 April 1997 which accompanied it (see docs 1, and 5-7).

It should also be noted that all correspondence on behalf of the applicant appears to have been sent by LS, which was in fact the " applicant " nominated on the face of the DA Form 1.

Lodged with the Form 1 and letter were four drawings numbered " 1500 - DA 01, 02, 03 and 04 " (" the 1997 plans ") and a cheque for fees based on a project cost of $1.5M. (These items will be collectively referred to as " the 1997 documents ").

These 1997 documents were acknowledged and processed, and the fees paid receipted, by Council in accordance with the Environmental Planning & Assessment Regulation 1994 (" EP&A Regulation ") (cl 46A now cl 45). Council allocated the DA a number, " 103/97 " (see docs 8-8A), and the proposal was advertised (docs 9-10).

" Numerous consultations took place between the applicant and the respondent following lodgment ", as a result of which changes were made to the proposal. Those changes are referred to in various items of correspondence, and were canvassed at various meetings, between LS and the Council over time (agreed fact 7).

At its meetings on 5 August 1997, 2 September 1997, 16 December 1997, 3 February 1998, 17 March 1998 and 21 April 1998 "the respondent at the request of applicant deferred consideration " (agreed fact 6 - emphasis added) of the Council officers' recommendation, and that of the private consultant engaged to assess the DA, (doc 13ff), namely refusal. The officers and consultant had considered the 1997 plans (DA01-04), plus DA05, which was dated July 1997, and advanced, on 16 December 1997, 9 reasons for refusal (docs 20-1) (See generally docs 13-38).

During this period, on 20 October 1997, LS advised Council they had been " instructed to prepare amended documents for the development " (doc 19 - emphasis added).

On 1 April 1998 LS wrote to the Council (doc 37): …we now seek the indulgence of the Council to defer the current application , pending the submission of amended drawings for the development showing, amongst other things, access from St. David's Avenue.

Furthermore, we note from that meeting, that Council would be willing to give owners consent to the submission of a development application showing access across this small triangular portion of land, west of the existing electrical substation and as a consequence will result in a more acceptable solution to access the site, in lieu of the current application before the Council. (emphasis added).

On 9 April 1998, LS wrote to Council thanking it " for considering deferring the processing of our present application until such time as a more acceptable scheme is submitted " (doc 39 - emphasis added).

Council officers noted in their report to the 21 April 1998 meeting (doc 40) that: …The Applicant has been advised that amendments incorporating access from St Davids Ave would constitute a fresh Development Application, as the proposal would incorporate land not previously the subject of the submitted Development Application. It is the Applicant's intention to submit a further Development Application in due course .

The Applicant has requested that pending the submission of a new Development Application that Council defer indefinitely determination of the current application . … (emphasis added).

Council resolved at the 21 April 1998 meeting that " this matter be deferred " (doc 42) (emphasis added).

The next document in the agreed bundle (doc 42A) is the " agreement for sale of right of carriageway " over lot C, dated 24 May 1999 . Clause 10 of that agreement provided as follows: The Council agrees to provide Songkal on request with its consent as owner of the land to the lodgment of a Development Application and for the lodgement of any other application for consent, approval or certificate for the adjoining land of Songkal which incorporates access to the development over the land. (emphasis added).

LS then wrote to Council on 30 July 1999 that " our amended Development Application, for the site, is currently being prepared ". The letter is headed "Notice of Impending Lodgment of Development Application " (doc 43 - all emphasis added).

Ultimately, drawings indicating changes in the proposal were submitted to the respondent with letters from LS dated 23 September 1999, 21 October 1999 and 11 November 1999 (agreed fact 9).

On 23 September 1999 , LS submitted the drawings numbered 1500-DA01/A-DA12/A " as an amended development application " and " to supercede (sic) the current Development Application drawings held by Council " (doc 44 - emphasis added).

On 24 September 1999, pursuant to the agreement between the parties (cl 10 of doc 42A), the Council consented in writing " to a [DA] being lodged by [LS] on behalf of Songkal Pty Ltd, in respect of" lot C (doc 45).

Council's letter of 30 September 1999 to LS (doc 46) is headed " Proposed Mixed Commercial/Residential Development at No.701 …". It refers to " the above proposal and amended plans received by Council on 23 September, 1999 "; it says that " the application will be referred to private consultants for assessment "; and it seeks further information prior to advertising " the application … as was the case with the original proposal " (all emphasis added).

On 21 October 1999 , LS submitted to Council four copies of drawings numbered DA01/A-DA13/A " for Development Approval " (doc 47 - emphasis added), in substitution for those submitted 23 September, and in response to a request in the letter of 30 September. The letter foreshadows submission of a Statement of Environmental Effects (" SEE ") from Don Fox Planning Pty Ltd (" Fox ") " in support of our application ".

Additional DA fees were sought by Council, the amount being re-adjusted from the 1997 payment because of the increase in estimated cost of the proposed project from $1.5M to $4M (doc 48).

A letter from LS, dated 11 November 1999 (docs 49-50), was lodged with Council on 12 November 1999 accompanied by documents including: (a) Four copies of the drawings : DA01A; DA02A; DA03B ; DA04B ; DA05A; DA06A; DA07A; DA08A; DA09A; DA10A; DA11A; DA12A; and DA13A. (b) One copy of the above plans reduced to A4 size for notification purposes; (c) Statement of Environmental Effects prepared by Don Fox Planning Pty Limited dated November 1999; (d) A cheque payable to the Respondent to the value of $2225.00, being the applicable fees based on a construction cost of $4000 000. The amount payable was determined by subtracting the original Development Application fee based on a construction costs of $1.5 million from fees based on a construction cost of $4 million. (Agreed fact 10 - but c.f. doc 49).

That LS letter of 11 November 1999 stated: With these changes, we felt it would be wise to completely replace the current drawings held in Council to nullify any confusion. (emphasis added).

The Council receipted the additional fee payment (agreed fact 11). The receipt (doc 51) refers to matter number " 1977/103 " (sic).

On 30 November 1999, the Council wrote to LS (doc 52), in reference to "your Development Application received on 12 November 1999", advising about advertising/notification (emphasis added).

The Council instruction directed that the proposal's details were to be advertised under the heading "'Development Proposal' in capitals and bold type" (doc 53).

The draft advertisement read (doc 54): DEVELOPMENT PROPOSAL Council is in receipt of a development application 1997/103 seeking consent for the erection of a Residential Flat Building attached to commercial premises at Lot [A]…, No. 701 Pittwater, (sic) Road, Dee Why with access proposed over Lot [C] … which adjoins the site. The proposal does not constitute designated development. The applicant is Leffler Simes Pty Limited, Architects.

The development application, plans and accompanying documents may be inspected at … (emphasis added).

Council notified the new material, referred to as " DA No. 1997/103 ", to 15 adjoining property owners on 1 December 1999 (agreed fact 12), and advertised it and placed it on exhibition on 4 December 1999 (agreed fact 13) (emphasis added).

The 1999 documents, as indicated in the advertisement, embrace in the revised proposal lot C as well as lot A. The plans those documents include (par 37 item (a) - " the 1999 plans ") were then the subject of assessment by the Council, and of correspondence and meetings between the parties in the period March-May 2000 (agreed facts 17-19).

It is clear from the 1999 plans, and it appears to be common ground, that, apart from the inclusion of lot C to address the concerns about access, the now proposed building is 8 metres and 3 storeys (or 4 levels) higher, and has almost double the floor space ratio of that originally proposed. (See comparisons in par 15 above).

Council wrote to LS on 1 March 2000 (doc 55) in these terms: In reference to your letter referred to my office on 15 February concerning the above development, I advise that it is anticipated that the proposal will be reported to full Council in March 2000.

In regard to your clients concern that it appears that the application has taken an extraordinary time to secure a report from Council's Consultant, I advise that I consider Council's staff and its consultants are acting in accordance with Council's policies and also carrying out the assessment in accordance with the requirements of the Environmental Planning and Assessment Act.

Your indication that your client may appeal to the Land and Environment Court relating to a deemed refusal is considered to be a premature course of action as you can be assured that Council staff and its consultants are attempting to resolve the issue of the report to Council as quickly as practicable.

I trust the above outlines the position at this point in time in respect of the application … (emphasis added).

Council then wrote in detail on 8 March 2000 (docs 56-60), relevantly noting, inter alia, that the development proposal before it did not comply with height limits, being seven storeys at the rear. The letter canvassed many town planning concerns expressed by the consultant Carver, and concluded (doc 59): These comments are provided for your information. The current development proposal in its existing forms contains non-compliances that are likely to result in the development application being recommended to Council for refusal. The applicant may wish to submit amended plans , which should address the issues raised in this correspondence and any other specialist advice that is to be provided. Council would request that the amended plans be submitted within 21 days of receipt of this correspondence. (emphasis added).

Again on 27 March 2000 (doc 61), LS submitted "amended Development Application documentation " in the form of 4 copies of plans "DA01/A-02/A, 03/B, 04/C , 05-09/A, 10/B , 12/B and 13/B " (emphasis added) (" the 2000 plans ").

On 10 May 2000 (docs 62-3), Council advised LS that it had received " legal advice regarding the application and the subsequent amended plans ". Council's letter addressed the 2000 plans and commented that the " proposed development … is so substantially different to the development proposed … on 29 April 1997 as to amount to a fresh application …" . Council invited the applicant to withdraw the DA lodged 29 April 1997 and lodge a fresh DA , otherwise Council would determine the DA " as proposed in April 1997 ". The letter went on to detail 6 merits reservations about " that proposal " described in the 2000 plans (all emphasis added).

An internal memo between Council officers on 11 May 2000 (doc 64) referred to advice given by Mr Tobias QC to the effect that the agreement made regarding lot C (doc 42A), including cl 10 (see par 29 above), " was unlawful or alternatively came to an end when the option was not exercised ", and went on to say that the owner's consent given to " a Development Application over the Council land " (par 33 and doc 45) was of no force or effect. (emphasis added).

On 12 May 2000 , the applicant responded to Council's letter of 10 May in two ways:

(a) this appeal was filed, and (b) Mr Hemmings wrote to Council (docs 65-6) protesting Council's intention to determine the DA on the basis of " plans which were withdrawn and replaced on payment of a development application fee ", asserting that a new DA was lodged on 12 November 1999, and that " whether there is a substantial difference in the plans, is irrelevant ".

The Class 1 application , which was filed on 12 May 2000: (i) appealed against (in terms): The Respondent's deemed refusal of Development Application No. 103/97 lodged with the Respondent on 29 April 1997.

(ii) annexed, inter alia, the Fox SEE dated November 1999; and

Drawings numbered DA01A; DA02A; DA03B, DA04C; DA05A; DA06A; DA07A; DA08A; DA09A; DA10B; DA 12B; and DA13B (" the 1999 plans ")

It is to be noted in regard to par 52: (i) that, although " agreed fact 16 " refers to the drawings annexed to the class 1 application as " the 1999 plans ", they are in fact the 2000 plans - compare par 37 item (a) with par 48; (ii) that the " Form 1 " lodged on 29 April 1997 is not among the documents annexed to the class 1 appeal; and (iii) that, when asked by me why the class 1 application specified that the DA appealed against was one " lodged … on 29 April 1997 ", Mr Hemmings responded that it was his " mistake " (T.17.L30-34).

The rights of applicants whose DAs are not quickly determined by Councils are clearly spelled out in ss 96-97 of the EP&A Act, but their obligations , in exercising such rights, include lodging appeals against deemed refusals within 12 months of the expiry of 40 days following the submission of the DA.

The relevant authorities endeavour to distinguish between " mandatory " and " directory " requirements, and opt for " substantial " compliance with, rather than total observance of, " precise and detailed formalities ". See Hornsby Shire Council v Devery & Ors (1965) 12 LGRA 34 (at 39f per Else-Mitchell J); Woollahra Municipal Council & Anor v Sydney City Council (1966) 12 LGRA 175 (at 179 per Else-Mitchell J); Scurr v Brisbane City Council & Anor [No.5] (1973) 50 LGRA 50 (at 60 per Stephen J in the High Court); Hatton v Beaumont & Ors [1977] 2 NSWLR 211 (Court of Appeal); McInnes & Ors v Wingecarribee Shire Council & Anor (1987) 64 LGRA 137 (at 143 per Priestley JA); Duke Investments Trust Pty Ltd v Leichhardt Council [1999] NSWLEC 14 (per Talbot J); and Cameron v Lake Macquarie City Council (2000) 107 LGERA 308 (at 314-5 per Lloyd J).

The formalities required for DAs were discussed at some length, in the context of the general flavour of this line of authority, by Handley JA in Helman v Byron Shire Council & Anor (1995) 87 LGERA 349 (at 355ff).

As Mahoney JA said in Hatton (at 225E): The function of the Court in such a case as this is to give effect to the intention of the legislature. This it may do without difficulty where it appears from the terms of the legislation that the legislature directed its attention to the question and expressed an intention upon the effect to be given to the particular provision. But in most cases, of which the present is one, such an intention is not expressed and the Court's task is, by the application of the appropriate principles, to divine or impute that intention : … and this frequently leads, not merely to litigation, but also to uncertainty in the day-to-day operation of the legislation.

Mr Tobias and Mr Hemmings do not disagree on the current law in this respect - the court would be expected to be facultative in regard to what are regarded as (mere) " formalities ", required by the EP&A Act and Regulation, and discussed in those cases.

However, Mr Hemmings would have the court extend that facultative approach to its interpretation and application of ss 96-97 of the Act. He wants the court to find that the 1999-2000 documents constitute a new DA, so as to render this appeal " in time " in accordance with those sections.

As he said (T.17L.53ff): They've taken our fees, they've considered the application, they've required us to prepare new plans and then they say you have no right of appeal. This Court can't allow that and that's what the authorities say. That's pedantry to the extreme.

And later (T19), noting the passage of the negotiations which resulted in an indication by Council to the applicant, that: …a new development application is required and an application was made. The council gave it the same number … [The] authorities say we can't be punished if it's out of our control … The council also accepted the fees and told us all the document (sic) it required".

This alleged " new DA " was lodged really in stages between September and November 1999, and, indeed amended again in March 2000. However, Mr Hemmings says that it should be inferred that the Council accepted it as a new DA and waived some of the " formal " requirements laid down by Regulation 46A (formerly 45), such as submission of a new Form 1, or payment of an entirely new application fee (rather than an adjustment). He submits (T.21) that the " test " is whether the Council, as consent authority, has sufficient information to determine the DA.

On the other hand, Mr Tobias (T.24.L.10-40) agrees that, if a new DA has indeed been made, " it matters not that the regulations were not strictly complied with. … I don't suggest that the application is invalid because of non-compliance with these regulatory requirements ". However, he submits that " no fresh application was made in November 1999 but what was made was no more and no less than an amendment to an existing application ", and (T.25) that the court has jurisdiction only where it is " satisfied that there was a DA that was lodged within 12 months of the date of the appeal being lodged ".

Mr Tobias (T.26f) relies upon the facts regarding the formalities - Council's not requiring in 1999 a new Form 1 or the full DA fees, requiring owner's consent only in respect of lot C, continuing to use of the same 1997 DA number, etc. - as demonstrating that the 1999 documents, and that owner's consent, can constitute only amendments to a 1997 DA , and were so regarded by Council.

I agree that the test is, indeed, whether the information provided is sufficient for Council to make a determination. However, the original 1997 document, standing alone and unamended, satisfied that test, and the 1999-2000 documentation, standing alone, does not. Defining what the applicant really now proposes requires a consolidation, out of all the documentation lodged, of those documents (including plans) among which there is no mutual inconsistency.

If one compares the applicant's proposal as it stood in 1997 with what is actually now proposed, it is clear that they are two " substantially different " proposals. The Council communicated that view in April 1998 (par 27), and again on 10 May 2000 (par 49). On the basis of the test laid down in Willoughby Municipal Council v Manchil Pty Ltd & Anor [1974] 2 NSWLR 415, and the cases which have followed it, that view of the position in this case is clearly correct.

The variations from the initial proposal are clear and substantial on the face of the documents. Additional land, in Council's ownership, is now crucially involved, and the specifics of the envisaged building are very different indeed from what they were in 1997. The current proposal is adequately spelt out neither in the documents of April 1997, nor in those later documents upon which reliance is now placed. For example, the later documents do not include any new owner's consent in respect of lot A, as clearly required by s 77(1)(b) of the EP&A Act.

The applicant no longer wants consent for its 1997 proposal; it wants its 1999-2000 proposal. However, as the Council has continued to indicate a predisposition to refuse all suggested proposals, the applicant has continued (at least until May 2000) to persuade it to keep deferring its decision so it could try to negotiate a proposal Council might approve.

After negotiating for about three years, the Council specifically invited the applicant to begin the DA process again (par 49), and the applicant responded by commencing this appeal, so as to bring the whole matter, but especially its 1999-2000 proposal, before the Court. If the appeal has been commenced " in time ", those 1999-2000 amendments to the 1997 proposal may, by consent of the Council and the Court, be considered as part of the application before the court for determination. Such a course is not unusual in development cases.

However, the " formality " involved here is not the quantity of information the decision-maker may require, nor its quality, nor the way it is or ought to be presented. They are traditionally matters for the EP&A Regulation, and often attract the dispensation powers of the court (to which I referred in pars 54ff).

The " formality " obstructing the applicant's preferred path through the court's processes in this matter is a specific statutory time limitation .

Where courts do extend such appeal periods, they do so on the grounds of avoiding injustice to a party, and not merely to serve the parties' preferences or convenience, and, in doing so, they have not resorted to fictions.

Mr Hemmings needs the court to infer, from the documents included in the bundle, a withdrawal of the 1997 DA, and the initiation of a new one, and despite the confusion in those documents, which I have tried to illustrate by extensive quotation and the use of bold type, I cannot draw the necessary inference.

Nor is there any authority to support the alternative contention, which is implicit in Mr Hemmings' submissions, that if a DA (properly so regarded) has not been determined by the relevant consent authority, it can be continually amended, with the effect that the commencement dates of the 40 day deemed refusal period, and then of the 12 months appeal period, continue to be notionally, regularly and effectively postponed .

Not only can I find no authority for such a proposition that the " clock should stop " in such circumstances; it seems to me to be manifestly unworkable, and also contrary to the public interest, which requires, at least prima facie, that there be genuine certainty in such matters as time limits within which appeals must be brought.

The legislative scheme in ss 96-97 of the EP&A Act is clear on its face, and has the effect that an unhappy applicant cannot choose to rely on the 40 day provision to ground an appeal, and then escape the corollary that such an appeal must then be commenced within 12 months of the end of that 40 days.

While it may be more convenient for the applicant, and possibly also for the Council, for the court to hold that it has jurisdiction to determine the " DA " for No.701, as amended in 1999 and 2000, once and for all, this court cannot simply give itself jurisdiction to do so. Coombwood Pty Ltd v Baulkham Hills Shire Council (1995) 86 LGERA 319.

It is of no moment to this conclusion that many of the post 1997 documents, and many of the variations made to the proposal (see par 15), resulted from amicable consultations between the parties with a view to arriving at an " acceptable " proposal. Nor does it matter, in terms of ss 96-97, that Council and its consultants seem to have been quite happy to keep considering a " composite " DA until about March 2000, i.e. well after the appeal period (12 months plus 40 days from 29 April 1997) had expired.

The applicant did not accept Council's invitation to withdraw the " current " DA and lodge a new one. Council could have required a new DA instead of accepting the amended plans (see doc 40). However, withdrawal and recommencement did not occur, and the negotiations effectively stopped when the appeal was lodged. They can continue in the court only if the appeal is " competent ".

In order now to enliven appeal rights in respect of the applicant's current proposal, a completely fresh DA has been and still is required, albeit perhaps that it would be identical to the 1999-2000 version before the Council, but with all that is required, including the consents of the two owners involved.

Owner's consent may be provided at any time prior to the determination of a DA, but I know of no case where it was provided, as here, more than two years before lodgment of such fundamental DA documentation as the 1999-2000 documents, which propose such a substantially different project. In this case, one owner gave consent in 1997 to " the making of this application " (doc 3), which comprised a proposal for a 4 storey building on lot A, and the other owner now has advice that its purported consent in respect of developing an access to lot A over lot C is invalid.

Despite the extraordinary confusion among the documents in the agreed bundle, I have come to the firm conclusion that there has, in this case, been only one effective DA lodged, and that the correct view is that such DA is comprised principally of the 1997 documents, and remains on foot, despite the passage of the time for appeal.

All subsequent documentation amended the applicant's proposal, and hence that DA, so that what is now proposed is so " substantially different " that it should be the subject of a " new DA " in any event, and I can find no document later than 1997 which " initiates " the DA process for lot A.

The " amending " documents of 1999-2000 (replacement building plans, the inclusion of lot C, Council's owner's consent for lot C, a " formal " SEE, and a cheque for additional fees) do not , in law or fact, comprise such a " new DA " for lots A plus C .

This appeal was, therefore, correctly referable only to the 1997 proposal, and is, pursuant to ss 96-97, " out of time ".

The Court, accordingly, answers the preliminary question in the negative .

The consequence of this decision is probably that the appeal should be struck out, but the only relief so far sought by the Council is an answer to the question it posed in the document filed on 30 June 2000.

The appeal will, therefore, be listed for callover by the Registrar on Friday 27 October 2000 so that its further disposition can be considered.

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.

71. Where courts do extend such appeal periods, they do so on the grounds of avoiding injustice to a party, and not merely to serve the parties' preferences or convenience, and, in doing so, they have not resorted to fictions.

72. Mr Hemmings needs the court to infer, from the documents included in the bundle, a withdrawal of the 1997 DA, and the initiation of a new one, and despite the confusion in those documents, which I have tried to illustrate by extensive quotation and the use of bold type, I cannot draw the necessary inference.

73. Nor is there any authority to support the alternative contention, which is implicit in Mr Hemmings' submissions, that if a DA (properly so regarded) has not been determined by the relevant consent authority, it can be continually amended, with the effect that the commencement dates of the 40 day deemed refusal period, and then of the 12 months appeal period, continue to be notionally, regularly and effectively postponed.

74. Not only can I find no authority for such a proposition that the "clock should stop" in such circumstances; it seems to me to be manifestly unworkable, and also contrary to the public interest, which requires, at least prima facie, that there be genuine certainty in such matters as time limits within which appeals must be brought.

75. The legislative scheme in ss 96-97 of the EP&A Act is clear on its face, and has the effect that an unhappy applicant cannot choose to rely on the 40 day provision to ground an appeal, and then escape the corollary that such an appeal must then be commenced within 12 months of the end of that 40 days.

76. While it may be more convenient for the applicant, and possibly also for the Council, for the court to hold that it has jurisdiction to determine the "DA" for No.701, as amended in 1999 and 2000, once and for all, this court cannot simply give itself jurisdiction to do so. Coombwood Pty Ltd v Baulkham Hills Shire Council (1995) 86 LGERA 319.

77. It is of no moment to this conclusion that many of the post 1997 documents, and many of the variations made to the proposal (see par 15), resulted from amicable consultations between the parties with a view to arriving at an "acceptable" proposal. Nor does it matter, in terms of ss 96-97, that Council and its consultants seem to have been quite happy to keep considering a "composite" DA until about March 2000, i.e. well after the appeal period (12 months plus 40 days from 29 April 1997) had expired.

78. The applicant did not accept Council's invitation to withdraw the "current" DA and lodge a new one. Council could have required a new DA instead of accepting the amended plans (see doc 40). However, withdrawal and recommencement did not occur, and the negotiations effectively stopped when the appeal was lodged. They can continue in the court only if the appeal is "competent".

79. In order now to enliven appeal rights in respect of the applicant's current proposal, a completely fresh DA has been and still is required, albeit perhaps that it would be identical to the 1999-2000 version before the Council, but with all that is required, including the consents of the two owners involved.

80. Owner's consent may be provided at any time prior to the determination of a DA, but I know of no case where it was provided, as here, more than two years before lodgment of such fundamental DA documentation as the 1999-2000 documents, which propose such a substantially different project. In this case, one owner gave consent in 1997 to "the making of this application" (doc 3), which comprised a proposal for a 4 storey building on lot A, and the other owner now has advice that its purported consent in respect of developing an access to lot A over lot C is invalid.

81. Despite the extraordinary confusion among the documents in the agreed bundle, I have come to the firm conclusion that there has, in this case, been only one effective DA lodged, and that the correct view is that such DA is comprised principally of the 1997 documents, and remains on foot, despite the passage of the time for appeal.

82. All subsequent documentation amended the applicant's proposal, and hence that DA, so that what is now proposed is so "substantially different" that it should be the subject of a "new DA" in any event, and I can find no document later than 1997 which "initiates" the DA process for lot A.

83. The "amending" documents of 1999-2000 (replacement building plans, the inclusion of lot C, Council's owner's consent for lot C, a "formal" SEE, and a cheque for additional fees) do not, in law or fact, comprise such a "new DA" for lots A plus C.

84. This appeal was, therefore, correctly referable only to the 1997 proposal, and is, pursuant to ss 96-97, "out of time".

85. The Court, accordingly, answers the preliminary question in the negative.

86. The consequence of this decision is probably that the appeal should be struck out, but the only relief so far sought by the Council is an answer to the question it posed in the document filed on 30 June 2000.

87. The appeal will, therefore, be listed for callover by the Registrar on Friday 27 October 2000 so that its further disposition can be considered.