The submissions
4In recognition of the amendments, the Applicant submits that the proposal remains for four (4) units albeit 0.9m higher, with Unit 4 being reconfigured and the proposal retaining the original front and side setbacks and therefore the amendments are minor.
5The submissions of both parties referred to the authority on costs as stated in Futurespace Pty Ltd v Ku- ring-gai Council [2009] NSWLEC 153 wherein Pepper J stated at para 42:
42 A review of Cachia and the two Groeneveld decisions reveal the following principles that may, at a minimum, assist in determining whether the amendments are "minor" for the purpose of s 97B of the EPAA:
(a) first, the question of what is 'minor' is one of fact and degree (Cachia at [25] and the first Groeneveld at [14]);
(b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development (Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]);
(c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]);
(d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]);
(e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]);
(f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor;
(g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and
(h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]).
6Accordingly, the submissions for the Respondent are that the cumulative effect of the aforementioned amendments, when considered in the context of a four (4) unit development that is located on a flood constrained site with part of the development overhanging the floodway, results in more than a minor amendment.
7Furthermore, significant reassessment of the development was required in terms of the planning, flooding and traffic implications arising from the revised flood study. Also:
- Whilst the amendments did not involve a change in concept or raise an entirely new issue, this does not mean that they are "minor".
- Merely because the amendments were responsive to Council's contentions and, to some extent narrowed the issues in contention between the parties is not relevant to the determination of whether they are minor.
- The fact that the development application did not require re-notification by Council is an irrelevant consideration in determining whether or not the amendments should be classified as minor.
- Given the Court is now considering the issue of s 97B after the substantive proceedings have been determined, it is already aware that Council will have incurred significant costs in relation to the amendments.
8Mr Cottom also submits that when a comparison is made between this case and the quotes from the following cases referred to in S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 167 at paras 10 and 12, the extent of the amendment is greater here.
10 In Nanevski Developments Pty Ltd v Rockdale City Council [2009] NSWLEC 1423 at [10] Acting Registrar Gray held:
"In these proceedings, I accept that individual changes made to the internal layout relate only to mere detail. However, the cumulative effect of those amendments results in changes in the number of car spaces, the number and nature of facilities and amenities provided for residents, the number of beds for residents, the number of staff and the facilities provided for the staff. Whilst they may not result in any significant re-assessment by the Council's town planner in relation to the compliance of the proposed development with planning controls, I nonetheless accept that these changes will require the Council to assess the plans and re-consider aspects of the development for which the applicant seeks approval. The cumulative nature and extent of those changes therefore renders them something other than a minor amendment. Simply because the amendments do not change the building footprint or the externality of the building does not make them a 'minor amendment'."
11 In Globe Capital Properties Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1415 at [50] - [51] Tuor C and Dixon C held:
"50 This is a development application for a residential flat building with two buildings. After the amendments, the concept is the essentially the same a residential flat building comprising two buildings with the same number of units, a reduction in the number of bedrooms from 88 to 87, the amendments do not impact on the floor space ratio (FSR) and the footprint of the development remains the same, the same number of car spaces are provided, and there is a reduction in the width of the footpaths. However, it is not to the point to say that the development still remains, in broad terms the same...
51 ...In the context of this appeal the amended development application cannot be said to propose changes to the original application such as to be described as minor amendments."