Weriton Finance Pty Ltd v Wollongong City Council

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Groeneveld v Wollongong City Council [2009] NSWLEC 129 Coshott v Woollahra Council [1996] NSW LEC 256

APPLICANT Mr A Pickles, Barrister SOLICITOR DG Briggs and Associates LEGAL REPRESENTATIVES:

RESPONDENT Mr A Galasso SC SOLICITOR Kells the Lawyers

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10231 of 2010 10459 of 2010 10460 of 2010 10461 of 2010 10462 of 2010 10463 of 2010 10464 of 2010 10465 of 2010 10528 of 2010 Weriton Finance Pty Ltd v Wollongong City Council

JUDGMENT 1 COMMISSIONERS: The applicant has been granted leave to rely on amended plans in eight of these nine proceedings. Accordingly, it is necessary for us to determine, pursuant to the provisions of s 97B(1) of the Environmental Planning and Assessment Act 1979 (the Act), whether the changes are minor. If we determine, in any or all of the eight proceedings with amended applications, that they are not, then s 97B(2) of the Act requires that an order for the payment by the applicant of those costs of the council that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the relevant appeals is to be made by the Court.

2 As this case involves eight separate amendment applications, we must consider each case individually. The application for subdivision of the land has not been amended and therefore, no consideration of that application is required. That is not the case for the other eight matters as changes have been made to all eight for the works proposed on Lots 1 to 8 in the event that we determine consent should be granted to the subdivision application.

3 Mr Pickles, for the applicant, and Mr Galasso SC, for the council, presented alternate arguments for all of the applications with the exception of Lot 7 (where Mr Pickles accepted that the amendments were not minor). We concur concerning the amendments to the Lot 7 application amendments and s 97B(2) orders are required for this application to amend.

4 The council's submissions with respect to Lots 1, 3, 4 and 5 were but faintly put by Mr Galasso.

5 The amendments to the Lot 1 proposal are: o Parking space removed o Stairs added behind the garage o New 1.8m property boundary fence.

6 The amendments to Lots 3, 4 and 5 are: o Windows removed on southern elevation o Alternation to outbuilding balcony o Stairs added

7 Mr Galasso's written submissions on these amendments were that they "might arguably be regarded as minor." We agree and are satisfied that they should be so classified on a simple examination of the relevant plans.

8 No agreement was reached in relation to the amendments made to the plans for proposed Lots 2, 6 and 8.

9 Amendments made to the plans for Lot 2 are similar to those made to Lots 3-5 but with a further amendment involving the deletion of a hardstand carparking space from an area adjacent to the proposed double garage for that lot. As the parking required for the lot would comply with the council's code; the fact that the amendments would not be discernable from the adjoining land or from a public place; do not alter the functionality of the development; and do not require re-assessment (other than a simple mathematical calculation of the parking), we consider that the amendments made to the plans for Lot 2 are also minor.

10 The amendments made to the plans for Lot 6 also involve the same window and fencing changes made to Lots 2-5. In addition, the proposed detached garage at the rear of the site has been altered by way of a first floor addition. Whilst the scale of that addition could be described as small, it is the visual impact of that amendment that is relevant in the circumstances of the case. The whole of the land to which the applications relate is a highly visible headland and accordingly, any development which increases in height and scale could have significant impacts in terms of bulk, scale, visual impact or view considerations.

11 The photomontages produced by Mr Dickson, for the applicant, show that this additional storey to the outbuilding on Lot 6 would be prominently visible from the headland to the south compared to the unamended proposal for this lot.

12 In Groeneveld v Wollongong City Council [2009] NSWLEC 129, Preston CJ provided direction in this regard at paras 29 and 30 where he said: I accept that an assessment of whether an amendment to a development application is minor or not must be undertaken having regard to the context of the development and its location. Hence, in this case, it is relevant to look at the length of road that is being proposed, the site area, and the trees on the site. However, in this case the critical factor is the impact that the amendments to the development, in particular the re-alignment of the road and the new methods of construction of the road, had for the retention or removal of the trees. It is the significant changes to the trees to be retained and removed that causes these amendments to not be able to be classified as minor.

It may be accepted that the amendments did not cause an entirely new issue to be raised. Nevertheless, the amendments did require an existing issue to be re-assessed, in particular, they required the re-assessment of the impact the now proposed development would have on the retention and removal of trees. There were material differences for the reasons I have already explained.

13 Accordingly, we consider that the amendments made to the plans for Lot 6 require more than a mere cursory re-assessment of those impacts and for that reason, are not minor.

14 Proposed Lot 8 is to contain the major Spa Resort building and a multiplicity of amendments have been made to the plans for that building. We can categorise those amendments into four distinct categories: o amendments which clarify or add detail to the plans to assist in interpretation; o internal changes that do not affect the operation, functionality or visual impact of the development; o changes that affect the visual appearance of the building; and o changes that require more than trifling reassessment of aspects of the development.

15 In accordance with the guidance provided by Bannon J in Coshott v Woollahra Council [1996] NSW LEC 256, in an analogous but not identical statutory context, when considering the issue of whether a development is minor: It is a matter of degree whether changes are major or minor. In a small project, any change may be major. In a large scale project such as a three or four-storey Vaucluse mansion, the relative effect of change may be minimal.

16 It is not appropriate that we consider the number of amendments made but whether the total effect of those amendments is minor. The amendments that provide additional dimensioning, levels, notations or detail have do not require any assessment as such change only assists in better understanding of the plans and should have been included originally. By themselves, these are minor.

17 Whilst some internal change could be considered minor, the cumulative impact of those changes might extend beyond what is minor. However, in this particular case, alone, those amendments, again by themselves, would still fall within a minor amendment.

18 There are a number of external amendments that do not affect the visual, operational or functional assessment of the development and these involve changes such as the deletion of one of the two proposed rooftop swimming pools. If those were the only amendments made, it is unlikely that we would find the changes were not minor - even when accumulated with the internal changes discussed earlier.

19 The third category is those amendments that change the physical presentation of the building without necessarily requiring a full reassessment of the development proposal. This would include amendments such as the change to the position of the awning above the entry. Provided such changes do not impact on adjoining properties; alter the visual impacts of the development; or increase the physical bulk or scale of the development, such amendments may be considered minor also - even, too, in a cumulative assessment.

20 The final category involves those amendments that require reassessment of some aspects of the application. In this case, changes to setbacks from the street frontage and levels of the basement have been made. One of the contentions of the case is the impact of the development on the existing heritage listed Norfolk Island Pines and the amendments made to the plans are in response to concerns of the council that the works would impact on the viability of those trees. Changes made to the basement level have the potential to require reassessment of ramp grades and the adequacy of deep soil areas for the additional planting proposed. As is the case in all the previous scenarios, these changes in isolation might also be considered minor in themselves. However, in regard to the changed building setbacks, we do not agree that the amendment is minor, because of the engagement with relevant issues and the degree of further consideration required.

21 This fact, together with the cumulative impact of all the other amendments made, leads us to the conclusion that the amendments to the Lot 8 proposal are not minor and accordingly, a s 97B(2) costs order will apply for the Lot 8 application.

Conclusion re s97B. 22 We find that the amendments made to the plans for proposed Lots 1, 2, 3, 4 and 5 are minor and consequently, no order for costs is required for those amendments.

23 The amendments made to the plans for proposed Lots 6, 7 (agreed) and 8 are not minor and an order for costs must be made pursuant to the provisions of s 97B(2) of the Act in each of the relevant proceedings.

24 The parties are directed to bring in settled short minutes of order to reflect these conclusions in each of the three relevant matters we have determined require s 97B(2) orders. The short minutes are to be brought in 3 working days prior to the next hearing date in these matters.

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.