Urban Link Architects Pty Ltd v City of Parramatta Council

Outcome

1. For the reasons that follow, I have decided that Urban Link brought the proceedings within time pursuant to s 8.10(1) of the EPA Act. As a question of fact, Council's review determination dated 27 February 2024 changed the initial determination made on 28 August 2023. The notice of motion filed by Council on 23 September 2024 is dismissed.

Evidence

1. At the hearing of Council's motion on 17 October 2024, Council read the affidavit of Mr Christopher John Campbell, solicitor employed by Council, dated 23 September 2024 and tendered exhibit CC-1. Exhibit CC-1 included: 1. the original development application (DA/1006/2022) lodged on 21 December 2022 by Urban Link with Council; 2. the notification letter of the initial determination dated 29 August 2023 (this is, the date of notification) which stated that "you are advised that your application has been REFUSED" and that the determination date was 28 August 2023 (the initial determination notice); 3. the review application lodged with Council by Urban Link on 17 October 2023; 4. an amended Statement of Environmental Effects lodged with the review application; 5. a letter from Council to Urban Link dated 18 December 2023 which stated that a preliminary assessment of the review application had been undertaken, and that the review application was not able to be supported in its current form. This letter provided Urban Link with the following options: "[w]ithdraw the application via return email before 22 January 2023 or [p]rovide additional information no later than 22 January 2023 addressing the below concerns". The "below concerns" were as follows: 1. planning: individual BASIX certificates for each dwelling needed to be provided to Council; 2. architectural plans: amended architectural plans "that indicate the rendered brick wall along the front property boundary including the relevant dimensions and building materials" needed to be provided to Council; 3. waste management: "a sufficient Waste Management Plan in relation to the amended proposal" needed to be provided to Council; 4. acoustic report: a "Road Traffic and Noise vibration Assessment" needed to be provided to Council; 5. stormwater: "[e]vidence of a drainage easement through downstream properties benefitting the subject site giving the site legal right to drain; or [i]f no easement exists, a letter/s from (and signed) the downstream property owner/s confirming agreement in principle to the creation of the proposed easement" needed to be provided to Council; 6. driveway and manoeuvring requirements: Urban Link needed to address the following matters: "[i]n accordance with AS 2890.1 - 2004 …, the driveway shall be a minimum of 5.5 metres for a minimum distance of 6 metres from the property boundary [and] [a]ll vehicles are to enter and leave the site in a forward direction"; and 7. Transport for NSW: Urban Link needed to amend the proposal to address issues raised in the Transport for NSW letter issued on 20 July 2023. The letter stated that if the requested information was received at Council within 14 days and no request for an extension of time received, it would "be assumed that you wish Council to determine the application", and that this "may result in the refusal of your application"; and 1. the notification letter of the review determination dated 28 February 2024 which stated that "your application has been REFUSED" and that the determination date was 27 February 2024.
2. Urban Link tendered a two-page extract from the NSW planning portal in relation to the "determination of review". The first page of the "determination review" was a table with descriptions of actions at different times. On 28 February 2024 at 3:34pm, the NSW planning portal recorded: "Status changed to Determined".
3. The parties filed a statement of agreed facts (SOAF) after the hearing on 17 October 2024, and on 18 October 2024, I made an order that the SOAF be an exhibit on the motion. The following recitation of agreed facts is largely derived from the SOAF with some additions in light of the Court's review of the underlying documents which were tendered by the parties without objection.
4. As already recorded, on 21 December 2022, Urban Link lodged the original development application (DA/1006/2022) with Council for the construction of a single story attached dual occupancy development with Torrens title subdivision in relation to land at 212 Windsor Road, Winston Hills.
5. On 28 August 2023, the original development application was determined by way of refusal. The initial determination provided the five following reasons for refusal: 1. State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW): The proposed development fails to demonstrate practicable and safe vehicular access from the proposed access handle and would compromise the safety, efficiency, and ongoing operation of Windsor Road. As such, the proposal fails to satisfy Division 17 Roads and traffic, Clause 2.119(1)(a) and 2(b)(i) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW) - Chapter 2: Infrastructure. (Section 4.15(1)(a)(i) of the EPA Act). 2. Parramatta Development Control Plan 2011 (NSW): The proposed development is inconsistent with the following controls of Parramatta Development Control Plan 2011 (NSW): 1. Part 2 - Site Planning: 1. 2.4 - Site Considerations: 2.4.2 Water Management; 1. Part 3 - Development Principles: 1. 3.1 - Preliminary Building Envelope Table (Table 3.1.3.1 Dwelling Houses): Side setbacks; 2. 3.3 - Environmental Amenity: 3.3.2 Private open space; and 3. 3.6 - Movement and Circulation: 3.6.2 Parking & Vehicular Access. (Section 4.15(a)(iii) of the EPA Act). 1. Likely impacts: Information requested to assess the likely environmental impacts in the locality, was not submitted. Therefore, Council officers have been unable to conduct a detailed and accurate assessment of the full extent of the likely environmental impacts within the locality (s 4.15(1)(b) of the EPA Act). 2. Suitability of the site: The proposed development and associated works may result in environmental impacts where stormwater and planning impacts remains unknown, as sufficient information has not been provided to allow Council to undertake a full and proper assessment. Further, the proposal would result in significant traffic impacts on the surrounding road network due to the provision of an inadequate passing bay. Therefore, the proposal in its current form is not considered suitable for the site (s 4.15(1)(c) of the EPA Act). 3. Public interest: The proposed works are not in the public interest for the following reasons: 1. the proposal would result in environmental impacts where the full extent remains unknown, as sufficient information has not been provided to allow Council officers to undertake a full and proper assessment; and 2. vehicle access onto the site would compromise the safety, efficiency, and ongoing operation of Windsor Road. Therefore, the proposal in its current form is not in the public interest (s 4.15(1)(e) of the EPA Act).
6. As already recorded, on 17 October 2023, 49 days after the initial determination, Urban Link lodged an application for review of the initial determination (DAR/4/2023) under s 8.2 of the EPA Act. The review application was lodged within the 6-month period prescribed by s 8.3(2)(a) of the EPA Act.
7. The review application amended the proposed development the subject of the original development application, including by: 1. demolishing part of the existing dwelling (lot 1) in order to achieve the minimum 5.5 metres width for a distance of 6 metres access handle; 2. amending the width of the access handle in order to achieve 900 millimetres side setback from lot 1; 3. relocating of the laundry, so the onsite detention tank does not reside underneath habitable floor area; and 4. reducing and rearranging of bedroom 3 to lot 2A to ensure public open space dimensions are met.
8. Urban Link's position was that on 27 February 2024, after the conduct of the review, Council's decision by way of the review determination was to refuse the development application, and that Council changed the initial determination as follows: 1. the determination date was changed from 28 August 2023 to 27 February 2024; 2. reasons numbered 1-4 of the initial determination were deleted and one new particularised reason was inserted, being: 1. Environmental Planning and Assessment Regulations 2021 (NSW) (EPA Regulation) Written consent from the owners of 214C Windsor Road, Winston Hills, 4/216 Windsor Road, Winston Hills and 61 Naomi Street South, Winston Hills has not been provided in accordance with ss 23 and 24 of the EPA Regulation. 1. the particularisation of the reason for public interest was changed to: 1. Public interest: the proposed works are not in the public interest for the following reasons: 1. as sufficient owner's consent has not been provided, the proposal in its current form is not in the public interest. (Section 4.15(1)(e) of the EPA Act).
9. Council's position was that on 27 February 2024, after the conduct of its review, Council confirmed its initial determination to refuse the development application.
10. On 28 February 2024, the review determination was registered on the NSW planning portal pursuant to s 8.5(4) of EPA Act.
11. On 27 August 2024, the Class 1 appeal was commenced in this Court. In the Class 1 proceedings, Urban Link seeks the following orders: 1. The appeal is upheld. 2. Development Consent No. DAR/4/2023 is granted.
12. The Class 1 appeal was filed with the Court within 6 months of the review determination.

Relevant legislative provisions

1. Part 4 of the EPA Act relates to development assessment and consent. Section 4.16(1) provides as follows in relation to the determination of a development application: 4.16 Determination (cf previous s 80) (1) General A consent authority is to determine a development application by - (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application.
2. Part 8 of the EPA Act relates to reviews and appeals. Section 8.1 defines "appeal" and "review" as follows: appeal means an appeal to the Court under Divisions 8.3, 8.4, 8.5 and 8.6. … review means a review by a consent authority under Division 8.2.
3. Division 8.2 relates to reviews. In Division 8.2, s 8.2 of the EPA provides: 8.2 Determinations and decisions subject to review (cf previous ss 82A(1), 82B(1)) (1) The following determinations or decisions of a consent authority under Part 4 are subject to review under this Division - (a) the determination of an application for development consent by a council … (b) the determination of an application for the modification of a development consent by a council … (c) the decision of a council to reject and not determine an application for development consent. (2) However, a determination or decision in connection with an application relating to the following is not subject to review under this Division - (a) a complying development certificate, (b) designated development, (c) Crown development (referred to in Division 4.6). (3) A determination or decision reviewed under this Division is not subject to further review under this Division.
4. Section 8.3 of the EPA Act relevantly provides in relation to applications for reviews of a determination or decision made by the consent authority: 8.3 Application for and conduct of review (cf previous ss 82A(2)-(4) (6), 82B(2)-(4)) (1) An applicant for development consent may request a consent authority to review a determination or decision made by the consent authority. The consent authority is to review the determination or decision if duly requested to do so under this Division. (2) A determination or decision cannot be reviewed under this Division - (a) after the period within which any appeal may be made to the Court has expired if no appeal was made, or (b) after the Court has disposed of an appeal against the determination or decision. (3) In requesting a review, the applicant may amend the proposed development the subject of the original application for development consent or for modification of development consent. The consent authority may review the matter having regard to the amended development, but only if it is satisfied that it is substantially the same development. …
5. Section 8.4 provides as follows in relation to the outcome of the consent authority review of a determination or decision (emphasis added): 8.4 Outcome of review (cf previous ss 82A(4A), 82B(5)) After conducting its review of a determination or decision, the consent authority may confirm or change the determination or decision.
6. Section 8.5 of the EPA Act provides as follows in relation to reviews of a consent authority (emphasis added): 8.5 Miscellaneous provisions relating to reviews (cf previous ss 82A(10), 82C, 82D) (1) The regulations may make provision for or with respect to reviews under this Division, including - (a) specifying the person or body with whom applications for reviews are to be lodged and by whom applications for reviews and the results of reviews are to be notified, and (b) setting the period within which reviews must be finalised, and (c) declaring that a failure to finalise a review within that time is taken to be a confirmation of the determination or decision subject to review. (2) The functions of a consent authority in relation to a matter subject to review under this Division are the same as the functions in connection with the original application or determination. (3) If a decision to reject an application for development consent is changed on review, the application is taken to have been lodged on the date the decision is made on the review. (4) If a determination is changed on review, the changed determination replaces the earlier determination on the date the decision made on the review is registered on the NSW planning portal. (5) Notice of a decision on a review to grant or vary development consent is to specify the date from which the consent (or the consent as varied) operates. (6) A decision after the conduct of a review is taken for all purposes to be the decision of the consent authority. (7) If on a review of a determination the consent authority grants development consent or varies the conditions of a development consent, the consent authority is entitled (with the consent of the applicant and without prejudice to costs) to have an appeal against the determination made by the applicant to the Court under this Part withdrawn at any time prior to the determination of that appeal.
7. In relation to appeals from a decision of a consent authority in Division 8.3 of the EPA Act, s 8.6 provides: 8.6 Decisions subject to appeal to Court under this Division (cf previous s 23F) (1) A decision of a consent authority under Part 4 in relation to an application for development consent or a development consent is (if this Division so provides) subject to appeal to the Court under this Division. (2) A decision subject to appeal includes a decision made after a review under Division 8.2. …
8. Section 8.10 provides in relation to the time within which appeals may be made, relevantly 6 months after the date the decision appealed against is notified or registered on the NSW planning portal: 8.10 Time within which appeals may be made (1) An appeal under this Division (except by an objector) may be made only within the following periods after the relevant date (being the date the decision appealed against is notified or registered on the NSW planning portal or the date of deemed refusal under section 8.11) - (a) 6 months after the relevant date, if the relevant date occurs after the prescribed period, or (b) 12 months after the relevant date, if the relevant date occurs - (i) during the prescribed period, or (ii) during the 6-month period immediately before the prescribed period. … (3) In this section - prescribed period means the period commencing on 25 March 2020 and ending on 25 March 2022.
9. Section 8.11 of the EPA Act provides in relation to the circumstances in which consent is taken to have been refused for the purposes of an appeal: 8.11 Circumstances in which consent taken to have been refused for purposes of appeal rights (cf previous s 82) (1) A consent authority that has not determined an application for development consent (or for the modification of a development consent) within the period prescribed by the regulations for the determination of the application is, for the purpose only of this Division, taken to have determined the application by refusing development consent (or refusing to modify development consent) when that period ends. …
10. Division 4 of Part 1 of Schedule 1 to the EPA Act provides for mandatory notification requirements for applications and decision. Clause 20 provides in relation to public notification of certain decisions and reasons for the decisions: 20 Public notification of certain decisions and reasons for the decisions (1) This clause applies to the following decisions - … (c) the determination by a consent authority of an application for development consent, … (2) The mandatory notification requirement in relation to a decision to which this clause applies is public notification of - (a) the decision, and (b) the date of the decision, and (c) the reasons for the decision (having regard to any statutory requirements applying to the decision), and … (3) The requirement in subclause (2)(c) may be satisfied by reference to any document that contains the reasons for decision.
11. Rule 3.7 of the Land and Environment Court Rules 2007 (NSW) (LEC Rules) provides in relation to costs in Class 1 of the Court's jurisdiction: 3.7 Costs in certain proceedings (1) This rule applies to the following proceedings (except for appeals under section 56A of the Act) - (a) all proceedings in Class 1 of the Court's jurisdiction, … (2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. (3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following - (a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question - (i) in one way was, or was potentially, determinative of the proceedings, and (ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings, (b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents - (i) that are required by law to be provided in relation to any application the subject of the proceedings, or (ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application, (c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings, (d) that a party has acted unreasonably in the conduct of the proceedings, (e) that a party has commenced or defended the proceedings for an improper purpose, (f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where - (i) the claim or defence (as appropriate) did not have reasonable prospects of success, or (ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.

Whether, as a question of fact, Council's review determination dated 27 February 2024 confirmed or changed the initial determination to refuse development consent made on 28 August 2023

1. At the hearing, Urban Link raised as a question of fact, potentially dispositive of Council's motion, whether the review determination dated 27 February 2024 "changed" the initial determination to refuse development consent made on 28 August 2023, with the consequence that the application was taken to have been judged on the date the decision was made on review (s 8.5(3)) and the Class 1 appeal was brought within time pursuant to s 8.10(1) of the EPA Act.

Urban Link's submissions

1. Urban Link submitted that the outcome of the review was a "change" within the meaning of s 8.4 of the EPA Act of the initial determination to refuse development consent made on 28 August 2023 for the following reasons: 1. the review determination provided a different date, namely 27 February 2024, instead of 28 August 2023 which was the date of the initial determination. Pursuant to cll 20(1)(c) and 20(2)(b) of Division 4 of Part 1 of Schedule 1 to the EPA Act, the notification of a determination by a consent authority of an application for development consent must include the date of the decision; 2. the review determination provided different reasons for the refusal to those provided in the initial determination, and that in requesting the review, the development application and documentation in support had been amended since the initial determination was made (s 8.3(3)); and 3. on the face of the document titled "development application notice of determination" from Council dated 28 February 2024, it was clear that Council had issued a s 4.16(1)(b) determination refusing consent. The document used the words "Determination: REFUSED".
2. Urban Link submitted that the term "change" in s 8.4 is not defined, and that given the factors set out above at [35], there had been "a material change" of the initial determination. Urban Link also referred to s 8.5(4) which provides that if a determination is changed on review, the changed determination replaces the earlier determination on the date the decision made on the review is registered on the NSW planning portal.

Council's submissions

1. At the hearing, Ms Hammond conceded that Council used an "incorrect form" in the notification of the review determination dated 28 February 2024, and that the language of "refuse" was "an improper use of language". Further, Council submitted that the extract from the NSW planning portal showing the status "Determination: REFUSED" on 28 February 2024 should not be given weight, and that "a more accurate entry" would be that "Council confirmed its earlier decision to refuse". Council referred to s 8.4 of the EPA Act which provides that after conducting its review of a determination or decision, the consent authority may confirm or change the determination or decision, and submitted that in this case "Council was confirming" its initial determination to refuse the development application made on 28 August 2023.
2. Ms Hammond relied on the following obiter dicta comments made by Pain J in Lakeman v Ku-ring-gai Council [1] (Lakeman) at [30] (emphasis added): The primary context in which the word "determination" is used in s 82A is to refer to the outcome of the development application determined under s 80(1). There can only be two outcomes of a request pursuant to s 82A(4A). That is, a council "may confirm or change the determination". Where the council confirms the determination, the only "determination" is the original outcome of the development application. Where the council changes the determination, however, s 82D(3) applies such that "the changed determination replaces the earlier determination as from the date of review." In my view, a "changed determination" as referred to in s 82D(3) is one that modifies the outcome of the development application by either refusing a development application that was approved, approving a development application that was refused, or changing the conditions imposed on an approval of a development application. In those circumstances, the "determination" of the development application is the changed determination resulting from the s 82A review.
3. Council submitted that, as Pain J said in Lakeman at [30], where a council confirms the determination, the only "determination" is the original outcome of the development application. That was submitted to be the case here where there was no "fresh" or "new" decision, only confirmation of the earlier determination to refuse the development application. Council submitted that the Court would confirm the approach taken by Pain J as correct.

Conclusion in relation to whether, as a question of fact, Council's review determination dated 27 February 2024 confirmed or changed the initial determination to refuse development consent made on 28 August 2023

1. I have found, as a question of fact, that Council's review determination dated 27 February 2024 changed the initial determination to refuse development consent made on 28 August 2024, including for the reasons advanced by Urban Link. My reasons are that: 1. the date of the review determination (27 February 2024) was different from that of the initial determination (28 August 2023); 2. the review application lodged on 17 October 2023 with supporting documentation, 49 days after the initial determination, amended the proposed development the subject of the original development application in not immaterial ways; 3. the reasons provided in support of the review determination were different from those provided in the original determination with reasons 1-4 of the original determination being deleted and a single new reason being inserted; 4. in the "development application notice of determination" dated 28 February 2024, Council issued a s 4.16(1)(b) determination refusing consent; and 5. accordingly, there was a material change of the initial determination, and the changed determination replaced the earlier determination on the date the decision made on review was registered on the NSW planning portal (28 February 2024).
2. As to the concessions made at the hearing that Council had used an "incorrect form" in the notification of the review determination and that the language of "refuse" was an "improper use of language", and the submission that "a more accurate entry" would be that "Council confirmed its earlier decision to refuse", neither those concessions nor that submission detract from my finding that the review determination materially changed the initial determination. Nothing in what I have found is inconsistent with the obiter dicta comments of Pain J in Lakeman at [30] in relation to an earlier version of the provisions in Divisions 8.2 and 8.3 of the EPA Act. That is because I have found, as a matter of fact, that Council did not confirm its initial determination to refuse the development application. Rather, for the reasons given, particularly having regard to the different material in support of and different reasons given in the notification of the review determination, I have found the Council changed its original determination, the outcome being a "fresh" or "new" decision.
3. I have found, as a question of fact, that the review determination changed the initial determination, and hence that Urban Link's Class 1 appeal has been brought within time.
4. This conclusion is dispositive of Council's motion. It is unnecessary to consider the question of construction raised by Council as to whether Council's review determination dated 27 February 2024 was a "decision" subject to appeal to the Court within the meaning of s 8.6 of the EPA Act.

Costs

1. Council seeks its costs of the motion filed on 23 September 2024. Urban Link made no submissions in relation to the costs of the motion.
2. In Class 1 proceedings, the Court is not to make an order for costs unless it considers that the making of an order is fair and reasonable in the circumstances: r 3.7 of the LEC Rules. In relation to costs of Class 1 motions, in CBUS Property Pty Ltd v North Sydney Council [2] Pain J at [77] said "[r] 3.7(3)(a)(ii) can apply, while still a matter of discretion for a judge as to the outcome".
3. In circumstances in which Urban Link made no submissions in relation to the costs of Council's motion and the question of fact which has been ultimately dispositive of the motion was first raised by Urban Link at the hearing of the motion before me on 17 October 2024, I make no orders as to costs.

Conclusion and orders

1. The Court makes the following orders: 1. The notice of motion filed by City of Parramatta Council on 23 September 2024 is dismissed. 2. No order as to costs.

Endnotes

1. [2013] NSWLEC 14 at [18] (Pain J).
2. [2024] NSWLEC 47 at [77] (Pain J). 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: 31 October 2024