Tier Architects Pty Ltd v Sutherland Shire Council

Land and Environment Court (NSW)|2024-03-22|Before: Pain J

Solicitors: Conomos Legal (Applicant) Messenger Cole Solicitors (Respondent) File Number(s): 2023/00065491-004

ex tempore JUDGMENT

The Applicant's notice of motion dated 18 March 2024 seeks to set aside pursuant to r 49.19(1) of the Uniform Civil Procedure Rules 2005 (NSW) the orders of the Deputy Registrar (DR) made ex tempore on 15 March 2024 dismissing the Applicant's notice of motion.
The orders sought by the Applicant are as follows: 1. Pursuant to rule 49.19 of the Uniform Civil Procedure Rules, set aside the orders of Deputy Registrar Holm made ex tempore on 15 March 2024 dismissing the Applicant's Notice of Motion dated 8 March 2024, and in lieu thereof: (a) Grant leave to the Applicant to rely upon the amended plans and documents annexed to the affidavit of Anatasia Newcombe sworn on 8 March 2024; (b) Order the Applicant to pay the costs of the Respondent in a sum to be agreed or assessed thrown away by reason of the amendment under s 8.15(3) of the Environmental Planning and Assessment Act. (c) Vacate the hearing dates of 26-28 March 2024. 2. Any other orders the court deems fit.

Scope of review of Deputy Registrar's decision

The principles relevant to the scope of review of a registrar's decision are identified in Tomko v Palasty (No 2) at [6]-[10], [52] (Hodgson J): [6] I agree that a review of a decision of a registrar is not an appeal, subject to s.75A of the Supreme Court Act; and that in such a review a court must exercise its own discretion. [7] In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a registrar's decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so. [8] In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v. The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one. [9] In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v. The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing. [10] In my opinion, this approach is consistent with the position that such reviews are not appeals and involve the exercise of discretion by the reviewing body; and with the policy considerations referred to by Jordan CJ in In Re the Will of Gilbert (1946) 46 SR(NSW) 318 at 323. It is also consistent with the general principles concerning interlocutory applications: they do not finally decide matters, and successive applications can be brought for the same orders; but generally, a later application for orders that have previously been refused will be summarily dismissed unless a change of circumstances is shown or there is evidence satisfying the strict requirements for fresh evidence. The focus of review depends on whether the matter is one of practice and procedure or a matter which affects parties fundamental rights. The parties disagreed on how the matter before the Deputy Registrar should be characterised in this regard, the applicant saying while procedural the Applicant's rights were also affected significantly and the Council that a matter of procedure only. … [52] It follows that the proper approach to an application in relation to a decision of the Registrar is as follows: (1) the application should be treated as a "review", pursuant to s 121(3) of the Supreme Court Act and UCPR r 49.19; (2) a review, unlike an appeal, does not require demonstration of error, nor is it restricted to a reconsideration of the material before the primary decision-maker; (3) authorities with respect to the conduct of appeals against the exercise of discretionary powers, such as House v The King, do not in terms apply to a review; (4) nevertheless, similar policy considerations may arise in relation to a review, including: (a) a court may be less inclined to intervene in relation to a decision concerned with the management of an on-going proceeding, as opposed to one which terminates the proceeding or prevents its commencement; (b) different factors may need to be addressed in relation to breach of time limits in relation to the commencement of proceedings, as compared with breach of time limits for steps to be taken in the course of proceedings properly commenced, and (c) a court may be more inclined to intervene on a review based on fresh evidence, changed circumstances or where error is demonstrated in the decision under review. …
As these passages make clear the extent of review is informed by whether a matter concerns one of practice and procedure or affects more fundamental rights. The parties disagreed on how the DR's decision should be considered. The Council did not accept that there was any error in the DR's consideration of the matters put by the parties before her as a matter of practice. The Applicant submitted that while practice and procedure matter its rights were also affected.
If viewed solely as a practice and procedure matter the Applicant alleged a House v King (1936) 55 CLR 499; [1936] HCA 40 error in that the DR placed too much focus on cl 92 of the Class 1 Development Appeals Practice Note, which should not be regarded as a hard and fast rule. This elevated the efficiency of judicial administration above the dictates of justice. This should not occur based on Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [98] (Gummow, Hayne, Kiefel and Bell JJ) where there has been no delay or default by either party. The DR's consideration of Ms McMahon's affidavit was misplaced as this affidavit favoured the vacation to allow re-notification and re-assessment by the Council. Further the DR should have considered the agreement between the experts as a matter in favour of the grant of the leave sought. No in principle agreement between the parties was necessary before leave to amend could be granted.
I consider that these submissions impermissibly criticise the weight attributed to relevant matters by the DR in her consideration and are not able to be raised as part of this review.
While the orders sought were ones of practice and procedure the matter did have an impact on the Applicant's rights in that the course of the litigation was potentially substantially affected by a decision about reliance on amended plans.
The key issue is did the DR err in not resolving the issue arising from the order sought by the Applicant to rely on amended plans first before moving to the exercise of discretion, but rather considered the notice of motion largely in light of cl 92 of the Class 1 Development Appeals Practice Note? I do not need to find that a House v King error is demonstrated to consider that in the interests of justice the substantive order in the Applicant's notice of motion should have been determined first before moving to consider the exercise of discretion, as that finding does impact the Applicant's appeal. The DR did not resolve the issue raised by the Applicant's notice of motion before considering the discretionary arguments concerning the efficient conduct of the court's processes. The DR's consideration should have been informed by a decision on the matter sought by the Applicant's notice of motion. I will re-exercise the discretion of the DR in considering whether to make the orders sought in the notice of motion concerning the Applicant's reliance on amended plans.

Application of cl 37 of Environmental Planning and Assessment Regulation 2021 (NSW)

Clause 37 of the EPA Regulation provides for the amendment of plans. The oft‑cited decision in Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155 (here addressing cl 55 of the EPA Regulation) at [8]-[9] arises where Jagot J identified that the approval of amendment of plans depends on the facts of a case with the power to be determined in light of the beneficial and facultative nature of the provision. Examples of cases referred to by the parties show that reasonably significant changes to plans have been allowed under cl 37 of the EPA Regulation.
The affidavit of Ms Newcombe dated 8 March 2024 identifies the scope of the amendments sought and includes the planners joint report where the amended plans are attached. These are in two bundles, one for proposals A, B and C and one for a concept plan proposal.
For the reasons provided by the Council supported by the affidavit of Ms McMahon town planner dated 14 March 2024 read before the DR and before me, and in light of the masterplan and elevation plans in Ex B and a comparison of the existing and proposed proposal as outlined in the joint report of the town planners to which I was taken, I do not consider leave should be granted to rely on the amended plans identified in the evidence as they do not come within the scope to amend plans enabled by cl 37 of the EPA Regulation. The changes are so substantial that they warrant consideration by way of a new development application and fall outside the scope of amendment allowed by cl 37. The proposal changes from a development application for ten buildings at various locations and at various heights across a substantial site of 29,740m2 to a concept plan with 12 buildings proposed over the same site and seeks consent for one stage of that development of three buildings A, B, C. All the footprints of the buildings change, the location of most of the buildings change and the heights of most buildings change, some very substantially as four tower blocks are now proposed in the centre of the site (11 storeys becoming 22 storeys in some of these), as identified in the affidavit of Ms McMahon. The extent of the substantial changes requires further assessment and additional expert reports are needed as identified by Ms McMahon. A table in par 13 identifies the height changes proposed.
Describing part of the application as being for a concept plan as permitted under Div 4.4 s 4.22 of the Environmental Planning and Assessment Act 1979 (NSW) does not result in a less rigorous environmental impact analysis being required as seemed to be what the Applicant was submitting. A concept plan which, if approved, sets the scale of development into the future, here on a very large site, still requires extensive assessment of its impacts in the locality.
While each case depends on its own circumstance this matter has some similarity with Barr Property and Planning Pty Ltd v Cessnock City Council [2021] NSWLEC 108 including in relation to the scale of changes intended not being entirely clear in terms of identifying what the concept part of the proposal is.
The evidence of Ms Newcombe for the Applicant that the new plans emerged after joint conferencing between the experts held on 5 March 2024, which raised new design concepts not previously identified at any stage of the assessment process leading up to the Class 1 appeal or until the joint conferencing of experts, and that these experts consider that the revised plans meet all the concerns raised by the various experts does not arise given my conclusion about the scope of the amendments sought and my decision that these should not be permitted.
The Court orders that in notice of motion (004) dated 18 March 2024: 1. Prayers 1(a) and 1(b) are dismissed. 2. The hearing dates of 26-28 March 2024 are vacated.

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. Decision last updated: 04 April 2024

The notice of motion dated 8 March 2024 before the DR sought orders that:

1. The Applicant is granted leave to rely upon the amended plans and documents annexed to the affidavit of Anastasia Newcombe sworn on 8 March 2024.

2. The Applicant is to pay the costs of the Respondent in a sum to be agreed or assessed thrown away by reason of the amendment under s 8.15(3) of the Environmental Planning and Assessment Act.

3. Any other orders the court deems fit.

It is to be noted that the notice of motion before the DR did not seek an order vacating the hearing dates of 26-28 March 2024. The DR identified in her judgment that the Applicant accepted that a consequence of making the orders granting leave to rely on amended plans that vacation of the hearing dates would be necessary. Before me the parties agreed that regardless of the decision about amended plans the hearing dates cannot or would not proceed.
In her judgment the DR considered the affidavit of Ms McMahon town planner for Sutherland Shire Council (the Council) dated 14 March 2024 at pars 6, 8, 18-23 in exercising her discretion. (This affidavit was also read before me.) Those paragraphs dealt with the impact of the proposed amendments including the possible detriment to the community, the need for seven additional reports, including revised plans inter alia in accordance with the Council's community engagement strategy. The DR refers to the proximity of the hearing date and that the Applicant needed to overcome the presumption that leave would not ordinarily be given to an amendment which would require the final hearing or adjournment of the final hearing as stated in cl 92 of the Class 1 Development Appeals Practice Note. The DR accepted the Council's submissions that the matter which involved significant amendments would more readily be dealt with as a development application before the consent authority. The DR referred to expert evidence noting that some level of agreement had been reached but that the parties had not reached an 'in principle' agreement. The DR stated that the question before her was whether in the exercise of discretion leave should be granted and she was not satisfied about that matter.
Unlike the evidence before me the DR was not told that the Applicant would discontinue the Class 1 appeal if leave to rely on amended plans was not granted. Mr Nasser's affidavit sworn on 20 March 2024 states that the Applicant will discontinue these proceedings.
The parties agreed that the DR did not determine the matter of the application of cl 37 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) concerning whether the amendment of plans sought by the Applicant should be granted.
The Applicant has the onus of demonstrating that the DR's decision should be set aside in the interests of justice in the exercise of the Court's discretion, Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [7].

The principles relevant to the scope of review of a registrar's decision are identified in Tomko v Palasty (No 2) at [6]-[10], [52] (Hodgson J):

[6] I agree that a review of a decision of a registrar is not an appeal, subject to s.75A of the Supreme Court Act; and that in such a review a court must exercise its own discretion.

[7] In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a registrar's decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so.

[8] In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v. The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one.

[9] In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v. The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing.

[10] In my opinion, this approach is consistent with the position that such reviews are not appeals and involve the exercise of discretion by the reviewing body; and with the policy considerations referred to by Jordan CJ in In Re the Will of Gilbert [1946] NSWStRp 24; (1946) 46 SR(NSW) 318 at 323. It is also consistent with the general principles concerning interlocutory applications: they do not finally decide matters, and successive applications can be brought for the same orders; but generally, a later application for orders that have previously been refused will be summarily dismissed unless a change of circumstances is shown or there is evidence satisfying the strict requirements for fresh evidence. The focus of review depends on whether the matter is one of practice and procedure or a matter which affects parties fundamental rights. The parties disagreed on how the matter before the Deputy Registrar should be characterised in this regard, the applicant saying while procedural the Applicant's rights were also affected significantly and the Council that a matter of procedure only.

...

[52] It follows that the proper approach to an application in relation to a decision of the Registrar is as follows:

(1) the application should be treated as a "review", pursuant to s 121(3) of the Supreme Court Act and UCPR r 49.19;

(2) a review, unlike an appeal, does not require demonstration of error, nor is it restricted to a reconsideration of the material before the primary decision-maker;

(3) authorities with respect to the conduct of appeals against the exercise of discretionary powers, such as House v The King, do not in terms apply to a review;

(4) nevertheless, similar policy considerations may arise in relation to a review, including:

(a) a court may be less inclined to intervene in relation to a decision concerned with the management of an on-going proceeding, as opposed to one which terminates the proceeding or prevents its commencement;

(b) different factors may need to be addressed in relation to breach of time limits in relation to the commencement of proceedings, as compared with breach of time limits for steps to be taken in the course of proceedings properly commenced, and

(c) a court may be more inclined to intervene on a review based on fresh evidence, changed circumstances or where error is demonstrated in the decision under review.

As these passages make clear the extent of review is informed by whether a matter concerns one of practice and procedure or affects more fundamental rights. The parties disagreed on how the DR's decision should be considered. The Council did not accept that there was any error in the DR's consideration of the matters put by the parties before her as a matter of practice. The Applicant submitted that while practice and procedure matter its rights were also affected.
If viewed solely as a practice and procedure matter the Applicant alleged a House v King (1936) 55 CLR 499; [1936] HCA 40 error in that the DR placed too much focus on cl 92 of the Class 1 Development Appeals Practice Note, which should not be regarded as a hard and fast rule. This elevated the efficiency of judicial administration above the dictates of justice. This should not occur based on Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [98] (Gummow, Hayne, Kiefel and Bell JJ) where there has been no delay or default by either party. The DR's consideration of Ms McMahon's affidavit was misplaced as this affidavit favoured the vacation to allow re-notification and re-assessment by the Council. Further the DR should have considered the agreement between the experts as a matter in favour of the grant of the leave sought. No in principle agreement between the parties was necessary before leave to amend could be granted.
I consider that these submissions impermissibly criticise the weight attributed to relevant matters by the DR in her consideration and are not able to be raised as part of this review.
While the orders sought were ones of practice and procedure the matter did have an impact on the Applicant's rights in that the course of the litigation was potentially substantially affected by a decision about reliance on amended plans.
The key issue is did the DR err in not resolving the issue arising from the order sought by the Applicant to rely on amended plans first before moving to the exercise of discretion, but rather considered the notice of motion largely in light of cl 92 of the Class 1 Development Appeals Practice Note? I do not need to find that a House v King error is demonstrated to consider that in the interests of justice the substantive order in the Applicant's notice of motion should have been determined first before moving to consider the exercise of discretion, as that finding does impact the Applicant's appeal. The DR did not resolve the issue raised by the Applicant's notice of motion before considering the discretionary arguments concerning the efficient conduct of the court's processes. The DR's consideration should have been informed by a decision on the matter sought by the Applicant's notice of motion. I will re-exercise the discretion of the DR in considering whether to make the orders sought in the notice of motion concerning the Applicant's reliance on amended plans.

Clause 37 of the EPA Regulation provides for the amendment of plans. The oft‑cited decision in Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155 (here addressing cl 55 of the EPA Regulation) at [8]-[9] arises where Jagot J identified that the approval of amendment of plans depends on the facts of a case with the power to be determined in light of the beneficial and facultative nature of the provision. Examples of cases referred to by the parties show that reasonably significant changes to plans have been allowed under cl 37 of the EPA Regulation.
The affidavit of Ms Newcombe dated 8 March 2024 identifies the scope of the amendments sought and includes the planners joint report where the amended plans are attached. These are in two bundles, one for proposals A, B and C and one for a concept plan proposal.
For the reasons provided by the Council supported by the affidavit of Ms McMahon town planner dated 14 March 2024 read before the DR and before me, and in light of the masterplan and elevation plans in Ex B and a comparison of the existing and proposed proposal as outlined in the joint report of the town planners to which I was taken, I do not consider leave should be granted to rely on the amended plans identified in the evidence as they do not come within the scope to amend plans enabled by cl 37 of the EPA Regulation. The changes are so substantial that they warrant consideration by way of a new development application and fall outside the scope of amendment allowed by cl 37. The proposal changes from a development application for ten buildings at various locations and at various heights across a substantial site of 29,740m2 to a concept plan with 12 buildings proposed over the same site and seeks consent for one stage of that development of three buildings A, B, C. All the footprints of the buildings change, the location of most of the buildings change and the heights of most buildings change, some very substantially as four tower blocks are now proposed in the centre of the site (11 storeys becoming 22 storeys in some of these), as identified in the affidavit of Ms McMahon. The extent of the substantial changes requires further assessment and additional expert reports are needed as identified by Ms McMahon. A table in par 13 identifies the height changes proposed.
Describing part of the application as being for a concept plan as permitted under Div 4.4 s 4.22 of the Environmental Planning and Assessment Act 1979 (NSW) does not result in a less rigorous environmental impact analysis being required as seemed to be what the Applicant was submitting. A concept plan which, if approved, sets the scale of development into the future, here on a very large site, still requires extensive assessment of its impacts in the locality.
While each case depends on its own circumstance this matter has some similarity with Barr Property and Planning Pty Ltd v Cessnock City Council [2021] NSWLEC 108 including in relation to the scale of changes intended not being entirely clear in terms of identifying what the concept part of the proposal is.
The evidence of Ms Newcombe for the Applicant that the new plans emerged after joint conferencing between the experts held on 5 March 2024, which raised new design concepts not previously identified at any stage of the assessment process leading up to the Class 1 appeal or until the joint conferencing of experts, and that these experts consider that the revised plans meet all the concerns raised by the various experts does not arise given my conclusion about the scope of the amendments sought and my decision that these should not be permitted.
The Court orders that in notice of motion (004) dated 18 March 2024:

(1) Prayers 1(a) and 1(b) are dismissed.

(2) The hearing dates of 26-28 March 2024 are vacated.

Civil Procedure Rules 2005

Planning and Assessment Act 1979

Planning and Assessment Regulation 2021

(2006) 145 LGERA 292

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