Tong Joo Pty Ltd v Mosman Council

Bignold J:

1. By Notice of Motion filed 2 May 2001, the Applicant to a pending class 1 proceeding involving an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (EP&A Act) which has been fixed for hearing on 22, 23 and 24 May 2001 seeks leave to rely upon amended plans. Leave is required by the Rules of Court Pt 13, r 16(b1) which relevantly provides:

Where proceedings have been fixed for hearing, the following requirements apply -

(b1) except with the consent of the respondent, or by leave of the Court, the applicant at the hearing shall not be entitled to rely upon any amended plans of the development proposal which the applicant initiates.

The Council opposes the Motion contending that the amended plans sought to be relied upon by the Applicant involve such changes to the proposed development, as originally propounded, as to render it not substantially the same development, with the legal consequence that the Court has no jurisdiction to entertain the amended proposal. This, I think is to state the ultimate legal consequence of the Council's submission which was expressed more in terms of the conventional dichotomy in this area of planning law and practice between (i) a development proposal which maintains its original identity albeit in an amended form; and (ii) a development proposal which loses its original identity by virtue of nature and degree of the proposed amendments which create a new and different development proposal from the original proposal.

The Council's alternative submission is to the effect that if the Court were to reject its primary argument, then conformably to the Council's Notifications Development Control Plan, (the DCP) the Council would be required to re-notify all persons who had lodged submission in response to the original notification and that such persons would be entitled to make further submissions within the period of 14 days. The consequence of the requisite re-notification is that there would be insufficient time before the fixed hearing dates (22 - 24 May) for the Council to finalise the re-notification process and to determine the matter afresh in the light of the results of that process. Accordingly, it was submitted by the Council that the consequences of the Court granting leave to the Applicant to rely upon the amended plans would be to require the vacation of the hearing dates in respect of which the Council also should be compensated by an order for costs thrown away.

Moreover, it was submitted that if leave were granted by the Court, the Council should be compensated for the additional costs that would be incurred by the Council in its re-consideration of the amended development proposal.

However, it remained the Council's primary case that the amended proposal should be the subject of a fresh development application to be submitted to the Council to be processed by it as an original application.

The evidence concerning (i) the nature of the amendments proposed to the development as formulated in the original development application which was formally determined by the Council on 12 December 2000 by the refusal of development consent and (ii) the circumstances in which the amendments have been proposed, comprises the following: (i.) the development plans accompanying the original development application which is the subject of the Council's determination and the present appeal (filed by the Applicant on 1 December 2000 against the Council's deemed refusal); (ii.) the amended development plans for which the Applicant seeks the Court's leave for the Applicant to rely upon those plans at the hearing; (iii.) the submissions made by three persons in response to the Council's public notification of the original development proposal; (iv.) the affidavit of the Applicant's Solicitor who deposes to (a) forwarding the amended plans to the Council's Solicitors by letter dated 17 April 2001; and (b) being instructed that the amended plans were prepared in response to issues that had been raised by the Council in its Statement of Issues filed in the proceedings on 17 January 2001 (reflecting the grounds for the Council's determination refusing development consent); and (v.) the affidavit of Mr Peter Wells, the Council's Senior Town Planner in which he deposes to (a) what he notes as the differences in the proposed development which he deduces by comparing the original development plans with the proposed amendment plans and (b) his opinion that the changes to the original development plans are "such as to amount to a fresh application".

For the purposes of adjudicating on the present Motion, I am content to adopt Mr Well's description contained in pars 13, 14 and 15 of his affidavit of the differences between the original development plans and the amended development plans.

Stated summarily, those changes result in a significant reduction in the bulk, height, scale and intensity of the proposed development which as originally propounded, comprises five floors of residential development, one of which (namely the ground floor) also incorporates a commercial/retail space, over three basement levels of carparking on land known as Nos 327 - 333 Military Rd, Mosman. Thus, for example there will be a reduction in the number of residential units from 35 to 29, the elimination of the attic floor and the reduction in overall building and wall height from 16.6 m to 13.7 m.

In my opinion, these proposed changes are properly regarded as significant changes. However, that finding and the adjectival epithet "significant" does not determine whether the changes are of such a nature and extent as to eliminate the identity of the original proposal or to result in a development that is not substantially the same as the original proposal.

The EP&A Act and its Regulation made thereunder clearly recognise the possibility of a development application being amended or varied before it has been determined.

Thus, cl 55 of the Regulation relevantly provides: 55. (1) 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.

(2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development.

However, it is to be noted that the Regulation does not attempt to define the meaning of (and more importantly the limits of) a relevant "amendment" or "variation". Nor does the EP&A Act, although in respect of some particular provisions, the Act does provide greater definition - see for example s 79(6) which dispenses with the need for additional public exhibition of, inter alia, an amendment to a development application for designated development - if, inter alia "the consent authority is of the opinion that the amended, substituted or later application differs only in minor respects from the original application" (emphasis added).

In determining the present Motion, it is important, I think to emphasise that Pt 13 r 16(b1) of the Rules of Court does not confer any independent power to amend a development application which is the subject of pending proceedings in the Court. Rather, it operates in respect of whatever powers of amendment are conferred by the EP&A Act and the Regulation.

So understood, it is clear that the real purpose of Rule (which came into force on 1 September 2000) is to ensure that the practice of the Court in entertaining amended plans at the hearing of a development appeal ensures overall fairness to all parties to the proceedings, where consideration of that fairness is not confined to that which occurs at the hearing but extends to the case preparation for the hearing.

Whereas it has virtually become commonplace for a developer on the hearing of development appeal to seek to rely upon amended plans which are directly responsive to concerns or objections raised by a Council to a development proposal, a fair balance must be struck between the parties to the litigation when the Court is called upon to exercise its discretionary power to grant leave under the Rule in a case where the Respondent withholds its consent, recognising that the Court's jurisdiction is to determine the development application that is the subject matter of the appeal proceedings. But even within this adjudicative context, (where the Court, by virtue of s 39(2) of the Land and Environment Court Act 1979 is vested with all relevant powers of the consent authority in relation to the matter, the subject of the appeal) overall considerations of fairness and efficiency will generally allow some degree of flexibility in the precise definition of the proposed development, the legitimacy for which is to be found in the concept of "amendment to a development application", that is recognised by the EP&A Act and Regulation.

However, another highly relevant consideration to the exercise of the Court's discretion under the Rule concerns the impact of granting leave pursuant to the Rule on case preparation by a council. Thus, to take an extreme example, if on an appeal against a council's determination refusing development consent the entire basis for the council's decision was capable of being overcome by legitimate amendments made to the development proposal, should a council which has fully prepared its case, be met at the hearing (or shortly before the hearing) by such an amendment initiated by the applicant? Surely not, for in such hypothetical circumstances, it would behove the developer to have sought the necessary amendment before the council had undertaken its case preparation and thereby avoided the incurring of unnecessary costs. Although the Court has a long-established practice of not making costs orders in planning appeals, save for exceptional circumstances, the practice is premised upon the costs being reasonably incurred in the litigation.

In the present case, I am satisfied that although significant changes are proposed to the development by virtue of the amended plans, it is still open to find, as a finding of fact and degree, that the proposed amendments do not exceed the legitimate boundaries of what may constitute an "amendment" to a development application within the meaning of the EP&A Act.

However, notwithstanding the legitimacy of the proposed amendment, I am also satisfied that it has arisen far too late in the litigation history (with the hearing dates just 18 days removed coupled with the attendant requirement for expert reports in the case to be served and filed within the next 4 days) for the Applicant to be given leave to rely upon the amended plans at that hearing.

In this respect, it would be wholly unfair to expect the Council to be ready for the hearing, given the legitimacy of its decision that it will be necessary for it to re-notify the proposal in accordance with the DCP.

Accordingly, I have concluded that the discretion conferred by the Rules of Court Pt 13 r 16(b1) should not be exercised in favour of the Applicant so far as concerns the hearing fixed for 22 -24 May 2001.

Those hearing dates were allocated on 19 January 2001 after the Council had filed in the proceedings its Statement of Issues and three months were to expire before the Applicant submitted to the Council's Solicitors the amended plans.

In these circumstances, the Council's position in opposing the Notice of Motion is, in my judgment, entirely defensible, even though I have not upheld its primary submission that the amendment converts the proposal into a new development.

However, I am also of the opinion that if the Applicant were to obtain the vacation of the hearing dates, the leave sought in its Motion should be granted pursuant to the Rule of Court, but upon terms which will fairly compensate the Council in terms of costs - both costs thrown away and costs incurred by virtue of the belated injection into the proceedings of the amended plans.

For all the foregoing reasons, I make the following orders:

1. Leave pursuant to the rules of Court Pt 13 r 16(b1) to rely upon the amended plans referred to in the Applicant's Notice of Motion filed 2 May 2001 at the hearing of the proceedings fixed for 22-24 May 2001, is refused.
2. In the event of the aforesaid hearing dates being vacated, the leave sought in the Applicant's Notice of Motion is granted upon the following terms: (a) the Applicant pay any costs reasonably incurred by the Council in the proceedings that are thrown away by virtue of the vacation of the hearing dates; and (b) the Applicant pay to the Council any costs that are reasonably incurred by it in the proceedings by virtue of its need to consider the amended plans.

Note: The parties agree that the costs payable pursuant to Order 2(a) are $4,000 and the costs payable pursuant to Order 2(b) are $2,000 .

Following the making of the above orders, the Applicant sought leave to vacate the hearing dates. The Council did not oppose the application. Accordingly, by consent, I make the following additional orders in the proceedings - 3. By consent, the hearing dates (22-24 May 2001) are vacated. 4. Directions given in respect of the Council's consideration of the amended plans. 5. Leave given to obtain allocation of substitute hearing dates at the Registrar's callover on 22 May 2001.

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