The Village McEvoy Pty Ltd v Council of the City of Sydney

Dyldam Developments Pty Ltd v Holroyd City Council [2001] NSWLEC 204 Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 CASES CITED: Elali v Campbelltown City Council [2004] NSWLEC 554 Humphrey & Edwards v City of Sydney [2009] NSWLEC 1075 Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155 Waite v Blacktown City Council [2004] NSWLEC 157

APPLICANT Ms Hunt, Solicitor Shaw Reynolds Bowen & Gerathy

LEGAL REPRESENTATIVES: RESPONDENT Mr P Tomasetti SC SOLICITORS Maddocks Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11264/08 - The Village McEvoy Pty Ltd v Council of the City of Sydney

JUDGMENT 1 ACTING REGISTRAR: This is an application made by way of Notice of Motion filed by the applicant on 20 April 2009. The Notice of Motion seeks leave to rely on amended architectural drawings in respect of a proposed mixed use development located in Alexandria. The original development application was lodged with the Council of the City of Sydney, the respondent, in October 2008.

2 In support of the application, the applicant relies on the affidavit of Ms Hunt sworn 20 April 2009. That affidavit, together with a list of changes to the plans that has been prepared by the Council, sets out the nature of the amendments.

3 The development application seeks approval for stage 1 of a mixed use development. In the development application, the proposed development is described as "Stage 1 DA for a 4 level building envelope with a mix of commercial and retail uses, 470 car spaces parking spaces, a landscaped pedestrian through site link and public square." The proposed site is on the corner of McEvoy Street and Bowden Street Alexandria.

4 The amendments reduce the overall height of the building envelope. They also appear to divide what was originally proposed as one building into two separate buildings. Whilst the main building retains the same number of levels, the second building created by the amendments is a single level building described on the plans as being a child care centre. These changes therefore result in a decrease in the number of parking spaces and in the number of units. Other changes to the physical layout of the building include the creation of an open forecourt to allow access from the green public pedestrian link to the shops, changes to the location of a stair well, changes to the location of walls within the building, changes to the roof terrace and the creation of an entrance to the first floor tenancy on the ground floor.

5 The amendments also change the use of some of the commercial units so that they now have proposed uses such as a gymnasium, a medical centre, an educational establishment, a child care centre and high-technology industrial.

6 The applicant emphasises that the development application does not seek approval for the internal layout of the building, including the internal configuration and use, but only seeks approval of the building envelope. The applicant says that the amended plans respond to the Statement of Facts and Contentions and the issues identified therein. The applicant also indicates that the amended plans respond to the principles espoused by Commissioner Brown in relation to the Green Square Town Centre in Humphrey & Edwards v City of Sydney [2009] NSWLEC 1075. The applicant therefore submits that the amended plans reduce the areas of dispute between the parties and lessen the potential impacts of the proposed development. The applicant also submits the nature of the uses are refined in order to be consistent with the zoning of the land for mixed use development.

7 The applicant accepts that if leave was granted by the Court, costs would be payable pursuant to s 97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed. Ms Hunt also indicates that the applicant intends to provide any additional information required by the Council to consider the amendments to the plans. The applicant's position is that whilst the plans are indicative of layout, they are not seeking approval of the internal layout, and that separate development applications would be required for individual tenancies. The applicant submits that all of the new proposed uses are permissible for a mixed use development and therefore the change to the proposed uses is not a change that renders the plans substantially different from those originally submitted to the Council. On the basis that the amended plans would reduce the issues in contention between the parties and facilitate the just, quick and cheap resolution of the issues in the proceedings, the applicant submits that leave ought to be granted to rely on the amended plans.

8 The respondent submits that leave should not be granted on the basis that the applicant, in drawing the amended plans, has converted the development to a substantially different application. In support of this submission, the respondent has drawn the Court's attention to the fact that the description of the proposed development no longer reflects the true nature of the proposal. The respondent also points out that the changed uses create separate defined uses which, for some of the proposed uses, require assessment under separate development control plans. The respondent also submits that leave to rely on the amended plans should be refused on the basis that there is insufficient information provided to enable the Council to properly assess the newly defined uses, and that the change to the proposed uses constitute an original application.

9 The respondent also submits that in light of s 81A(1) of the Environmental Planning and Assessment Act, which provides that consent granted in relation to plans also extends to any uses specified in those plans, the Court cannot be satisfied with the applicant's contention that separate development applications would be made for the individual tenancies.

10 Mr Tomasetti, counsel for the respondent, has drawn my attention to the various case law concerning amendments to development applications. In Elali v Campbelltown City Council [2004] NSWLEC 554, Bignold J discussed earlier case law and found that whilst the scope and extent of the power of amendment should be applied liberally, the amendments and variations cannot convert the development application to a fresh application. In considering the question of whether the development application is a fresh one, Talbot J in Kanivah Holdings Pty Ltd v Burwood Council [2005] NSWLEC 211 at [13] considered that it may be relevant to ascertain whether essential elements of the amendments "place the development in a different category for the purposes of consideration".

11 In Ebsworth v Sutherland Shire Council [2005] NSWLEC 603, Talbot J again considered the question of amendments to a development application and at para 33 summarised the various approaches taken by Judges of this Court. Specifically, he refers to the application of the 'substantially the same' test by Pearlman J in Dyldam Developments Pty Ltd v Holroyd City Council [2001] NSWLEC 204. In applying that test, Her Honour said at [6]: "the Court is not empowered to entertain amended plans which are so substantially different from the original plans that the development as proposed cannot be said to be substantially the same development". Talbot J also refers to the Court's decision in Waite v Blacktown City Council [2004] NSWLEC 157, wherein it is stated that: "The Court has no jurisdiction to entertain an original application. The Court cannot entertain an amendment which converts what was before the council into a fresh application. Therefore if the amendments convert the original concept into something substantially different from the original development application, the Court does not have the power to consider it." At paragraph 25 Talbot J then outlines two criteria that could be helpful in considering whether leave ought to be granted to rely on an amended proposal: (1) Whether the development as amended can be regarded as the same development as the one originally proposed in the context of the characterisation of the overall concept and the surrounding circumstance of the development application. (2) Whether there are essential elements that are so altered in the context of a consideration under the EPA Act that they place the development in a different category for the purpose of assessment. 12 The breadth of the case law on amended proposals is again considered by Jagot J in Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155. Whilst Her Honour considers that a broad approach to the Court's power is appropriate, she states at para 6 that one limit on the Court's power to amend development applications "has been consistently recognised - that the Court has no jurisdiction to entertain an original development application." Her Honour also considers that even where the Court does have the power, the question of whether the power should be exercised in a particular case depends on discretionary considerations.

13 Bearing this in mind, the first question to be asked by Her Honour in considering an application is whether the Court has the power to grant leave for the amendment or variation proposed. In answering this question, the Court should consider: "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." The second question asked by Her Honour is whether there are any discretionary reasons why that power should not be exercised given the particular facts of the proceedings. 14 In light of the questions articulated by Jagot J, the respondent submits firstly that the Court does not have the power to grant leave to rely on the amendments. This submission is made on the ground that the amendments sought by the Notice of Motion render the plans an original application that falls outside the jurisdiction of this Court. The respondent also submits that if I am against the Council on that point, there are other factors that I ought to take into account in determining whether the Court should exercise its power to grant leave to rely on the proposed amendments. Those factors include the proximity of the hearing date, the reality that the granting of leave to rely on the amended plans would necessitate vacation of the hearing date on the basis that the plans would need re-notification and re-assessment, and the fact that the information required to make a proper assessment of the amended application is not available.

15 I accept that Jagot J's approach is the most appropriate to adopt. However, in determining the first question as framed by Her Honour, it is also useful to consider the approaches taken by the other judges of this Court. For example, in determining whether the application has been rendered original by virtue of the amendments, it may be useful to consider whether the amended plans cause the application to be substantially different to the original application that was submitted to council.

16 In order to resolve this first question, I must examine the original and amended plans in order to ascertain whether they are the same development application. The proposed amendments in these proceedings fall into two categories. The first category consists of those amendments that are made to the physical dimensions and structure of the building envelope. This includes amendments to the number of car spaces, to the height and scale of the building, to the number of internal units and to the internal layout of the building. The second category of amendments are those made to the uses specified for the tenancy of the units within the building envelope. This includes the introduction of the proposed child care centre, educational establishment, high-technology industrial, gymnasium and medical centre.

17 I am not satisfied that the nature of the changes to the physical dimensions of the building envelope render the development substantially different to the original application. Nor am I satisfied that the changes to the physical dimensions alter the overall concept of the development. It cannot be said, therefore, that this category of amendments falls outside the power of the Court.

18 However, the amendments to the proposed uses of the tenancies in the building envelope constitute a significant change to the development application. I must therefore determine whether this change results in an original application that falls outside the jurisdiction of the Court. In my view it does so, for three reasons.

19 Firstly, section 81A(1) of the Environmental Planning and Assessment Act 1979 provides that: (1) A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application. Therefore, in considering whether approval should be granted for the building envelope, the Council must assess whether approval ought to be granted for the uses proposed on the plans for the building envelope.

20 Secondly, the uses that are now proposed for the tenancies were not before the Council when the development application was lodged. The child care centre, the medical centre, the gymnasium, the educational establishment and the high technology industrial area are all uses that constitute original applications.

21 Thirdly, fresh consideration is required in relation to each of the new proposed uses. For example, a separate development control plan applies to child care centres and the proposed child care centre would have to be assessed in light of that plan. In that context I cannot accept the submission by the applicant that the amended plans would cause only the reduction of the breadth of the contentions between the parties. In circumstances where the uses that are now proposed within the building envelope have not been previously considered by the Council, it is likely that the amended plans will result in new matters being raised in contention between the parties.

22 Therefore, whilst the nominated uses do not change the overall concept of the development, the change to the nominated use for the tenancies causes elements to be so altered that they would require separate assessment not previously conducted by the Council. In those circumstances, the change to the proposed use for the tenancies renders the amended plans an original application which falls outside the jurisdiction of the Court. On that basis I would refuse the orders sought in the Notice of Motion.

23 In taking this view I have accepted the Council's submission that the nature of the amendments is such that the Court does not have the power to grant the leave sought to rely on the amended plans. Accordingly, I need not consider the Council's submission in relation to why the Court ought not exercise its power to accept the amendments if it was established that the power exists. 24 I order that the Notice of Motion filed by the applicant on 20 April 2009 be dismissed.

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