Yassine Holdings Pty Ltd v Burwood Council

Facts

1. On 19 November 2012 the site was rezoned R1 General Residential under Burwood Local Environmental Plan 2012 (LEP), which permits a maximum height of 26m and a floor space ratio (FSR) of 3:1.
2. In August 2013 the Department of Planning rejected a Planning Proposal (PP) by the Council to downzone land in a precinct bound by Wentworth Road, Railway Crescent, Carilla and Gladstone Streets, Burwood, known as the "Wentworth Road Precinct", which includes the site.
3. On 31 March 2014, council resolved to reenact the PP and subsequently held discussions with the Department of Planning and Environment (DP&E) which issued a Gateway Determination for a revised PP on 3 September 2014 authorising the PP to proceed to community consultation and council to exercise delegation to finalise the PP being Amendment No 5 to the LEP (Draft LEP).
4. The Draft LEP was publically exhibited from 16 September to 14 October 2014, reported to council on 27 October and commenced on 28 November 2014.
5. The Draft LEP reduces the maximum height to 11m and the maximum FSR to 1.5:1 in the "Wentworth Road Precinct".
6. The applicant purchased the site in December 2013 and lodged Development application DA/62/2014 (the Development Application) on 17 April 2014. The Development Application sought approval for "demolition of existing structures at 24A-26 Gordon Street, Burwood, land consolidation and the construction of 9 storey residential flat building, which will comprise of 38 apartments and 49 on site car spaces over 3 basement levels." The proposed building had a height of 24.8m and a FSR of 2.67:1 (2720.97 sqm).
7. On 11 June 2014, the applicant lodged an appeal against the deemed or actual refusal of the Development Application under s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). To date, the application remains undetermined by council. The Statement of Facts and Contentions filed by council on 8 July did not refer to the Draft LEP.
8. A conciliation conference under s 34 of the LEC Act was held on 11 August and 3 September 2014. The parties did not reach agreement and the s 34 conference was terminated.
9. On 1 October 2014, the applicant obtained leave from the Court to rely on amended plans (Issue B Plans). These plans proposed 27 apartments and basement parking for 32 cars with a height of 24.8m and a FSR of 2.15:1 (2204.7 sqm).
10. An Amended Statement of Facts and Contentions was served on 11 November 2014 and filed on 17 November 2014. It included additional contentions 1, 3 and 4, which referred to the proposal's compliance with the height and desired future character established by the Draft LEP.
11. The hearing commenced on 4 December 2014, at which time the applicant sought and was granted leave to vacate the hearing dates and the matter was set down for a further hearing on 9 and 10 March 2015. The applicant sought the adjournment on the basis that it would be prejudiced by the making of the Draft LEP and the additional contentions raised by council and that it should be given the opportunity to address these matters by preparing amended plans that respond to the Draft LEP controls. The applicant now seeks leave to amend its application and to rely on these amended plans (Issue E Plans).
12. Council opposed the vacation of the hearing dates and now opposes the amendment to the application.

Council's submissions

1. The amendments are more than an amendment or a variation and convert the Development Application into an "original application", which the Court does not have the jurisdiction to entertain under cl 55 of the Regulation.
2. In determining the question of whether the amendments result in an "original application", the relevant comparison is between the Development Application as originally made and the Issue E Plans (See Waite -v- Blacktown City Council [2004] NSWLEC 157, Pan Pacific Property Group Pty Ltd Waverley Council (2) [2010] NSWLEC 1041.
3. The Issue E Plans are considerably and significantly different to the Development Application plans in terms of the height and FSR, which have each been almost halved, setbacks which have been almost doubled, internal layout and design which due to the orientation of individual units will require a complete reassessment, the external facade which now represents a building that is extremely different in appearance, private and communal open space which have been significantly increased. The only aspect of the proposal that remains is the characterisation.
4. The essential character of the development as proposed to be amended does not remain the same as the original application. In the case of Pepperwood Ridge v Newcastle City Council [2007] NSWLEC 19, Justice Talbot considered that while the overall object of the proposal may remain the same that in itself is not sufficient to conclude that a development is an amendment rather than a new proposal.
5. Even if the comparison is made between the Issue E Plans and the Issue B Plans, the same conclusion is reached that the changes are substantial, the essential character of the application does not remain and the amendments convert the Development Application into an "original application".
6. The amendments are more than an amendment or a variation to the Development Application envisaged by cl 55 of the Regulation. Whilst an amendment or variation may result in a changed development, the Court has no jurisdiction to entertain an "original application". A fresh development application is therefore required to be lodged with the council

Applicant's submissions

1. The relevant comparison is between the Issue E plans and the Issue B Plans as this is the development application that is before the Court for determination. In making a comparison between the present development application and the proposed amendment, it is necessary to identify what remains the same as well as what is proposed to change.
2. There is no change to the site and the proper characterisation of the development remains as a residential flat building, which is still permissible under the Draft LEP. A development application may be amended which results in a change to the land that is the subject of the development application (see Flower & Samios Pty Ltd v Shoalhaven City Council [2005] NSWLEC 620 at [24] per Talbot J) or a change to the characterisation of the development such that it ceases to be prohibited and becomes permissible (see Blackmore Design Group Pty Ltd v Manly Council [2014] NSWLEC 164 per Biscoe J at [15] and following).
3. In comparing the building forms, there have been changes, however, the essence of the development remains the same. The essence is as a residential flat building with a podium form with units above. It has been reduced from eight storeys to five storeys but the essence is a multi-level residential flat building in much the same site and building envelope (excluding height). It is a residential flat building sitting on essentially the same footprint but with a reduced height. The externalities of architectural features are ancillary elements rather than part of the fundamental essence of the application.
4. The same conclusion would be reached if the Issue E plans were compared with the Development Application plans. Consequently, the proposed amendments would not result in the conversion of the application into an "original application" and are within the scope of cl 55 of the Regulation.

Findings

1. Jagot J in Radray Constructions Pty Ltd v Hornsby Shire Council [2006] 145 LGERA 292 establishes the principles to be applied to the operation of cl 55 of the Regulation. Her Honour at [6] to [10] states: 6 In Ebsworth v Sutherland Shire Council Talbot J summarised the various approaches that have been taken to applications to amend plans. One limit on the power available under cl 55 has been consistently recognised - that the Court has no jurisdiction to entertain an original development application. The criteria used to determine whether an amendment converts an application the subject of appeal into an original application, however, has varied (see, for example, Ebsworth v Sutherland Shire Council at [33]). 7 At [40] in Ebsworth v Sutherland Shire Council, Talbot J observed that: It is my view that Regulation 55 is beneficial and facultative and intended to facilitate the making of amendments on two accounts. Firstly to enable the applicant for consent to respond to any issues identified by the council or objectors and secondly to encourage a consent authority to solicit a better outcome. A broad approach to the application of Regulation 55 is therefore appropriate. 8 I also consider that a broad approach to both the scope and application of cl 55 is appropriate. Clause 55 enables any application to be amended or varied with the agreement of the consent authority at any time prior to determination. An amendment or variation, as cl 55(2) contemplates, may result in change to the proposed development. The extent of change able to be authorised by agreement of the consent authority or by the Court exercising that function on appeal (and which does not result in the conversion of the application into an original application) will depend upon the facts of the particular case (including, for example, the nature of the site and the nature and characteristics of the proposed development). 9 The availability of the power is to be determined having regard to the beneficial and facultative nature of the provision. That is, I consider that cl 55 ought to be construed so as to give "the widest interpretation which its language will permit" (Bridge Shipping Pty Limited v Grand Shipping SA and Another (1991) 173 CLR 231 at 260 - 261 per McHugh J referring to Holmes and Another v Permanent Trustee Company of New South Wales Limited and Others (1932) 47 CLR 113 at 19 per Rich J). 10 The question whether the power should be exercised in a particular case (that is, should the Court, exercising the functions of the consent authority agree to the amendment or variation sought) is also to be answered having regard to the beneficial purpose of the provision. The factors relevant to that question will vary depending upon the circumstances in which the application is made (including, for example, the time at which the application is made and the reasons for making the application).
2. The parties agree that this is the appropriate approach but disagree on whether the relevant comparison of the Issue E Plans should be between the Development Application or the Issue B Plans. The cases referred to by the parties have not explicitly dealt with this issue. However, it is not necessary for me to determine the question as, even if I compare the Issue E Plans against the Development Application, as suggested by council, I find that the amendments will not result in the conversion of the application into an "original application".
3. The amendments and variations will lead to a changed development and may reflect a different design approach, which responds to the changed controls in the Draft LEP. However, the extent of change between the Development Application and the Issue E Plans is not beyond that which occurred in Radray (see [17]).
4. The site and characterisation of the building remains the same. There have been changes to the FSR, height, number of floors, setbacks, floor layouts, unit numbers and car spaces, however, the essence of the development remains the same. The essence is as a multi level residential flat building with a podium form and floors above and a similar footprint.
5. Accordingly, having regard to the beneficial and facultative nature of the provision, I am satisfied that there is power under cl 55 to agree to the proposed amendment.
6. Furthermore, in examining the circumstances of the application and also the beneficial and facultative nature of the provision, I find that it is appropriate to exercise the power under cl 55 of the Regulation for the following reasons. Firstly, the amendments are a response to the issues raised by council, the objectors and the Draft LEP. While the amendments may not resolve the issues in dispute, they will be reduced. Secondly, as the amendments are not minor, the applicant has agreed to an Order under s 97B of the EPA Act as to council's costs thrown away. Thirdly, the Issue E Plans will be renotified and finally, the Issue E Plans will not require a total reassessment by the experts and this can occur within the timetable set down for the further hearing.
7. It is appropriate that the Court exercise its discretion under cl 55 and that the application be amended.

Orders 1. The applicant is granted leave to amend development application No. DA/62/2014 in accordance with the plans referred to in Annexure "A" to the Affidavit of Troy Flaherty affirmed on 2 February 2015 (Issue E Plans). 2. The Applicant is to pay the Respondent's costs arising under s 97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed. Annelise Tuor Commissioner of the Court

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: 17 February 2015