Ambly Holdings Pty Limited v City of Sydney

[2016] NSWLEC 38

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ambly Holdings Pty Limited v City of Sydney [2016] NSWLEC 38
Hearing dates:	11 March 2016
Date of orders:	11 March 2016
Decision date:	11 March 2016
Jurisdiction:	Class 1
Before:	Moore J
Decision:	See [15]
Catchwords:	DEVELOPMENT APPLICATION – leave sought to rely on amended plans – are changes ones requiring a fresh development application – no fresh application required – leave granted
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000
Cases Cited:	Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155; 145 LGERA 292 Ebsworth v Sutherland Shire Council [2005] NSWLEC 603
Category:	Procedural and other rulings
Parties:	Ambly Holdings Pty Limited (Applicant) City of Sydney (Respondent)
Representation:	Counsel: Ms S Duggan SC (Applicant) Ms F Berglund, barrister (Respondent)   Solicitors: Mills Oakley (Applicant) Council of the City of Sydney (Respondent)
File Number(s):	10698 of 2015
Publication restriction:	No

EXTEMPORE DECISION

1. HIS HONOUR: The applicant in these proceedings seeks leave to rely on an amended development application for a proposed mixed use development to be located at 321 to 325 Sussex Street in Sydney.  The original application has been the subject of an extensive conciliation conference process before Tuor C which conciliation conference process was terminated without agreement being able to be reached between the parties.

2. Following the termination of conciliation conference, the applicant has sought leave to rely on amended plans, such leave being opposed by the council on the basis that the changes, using the word "changes" as an encompassing one at this time, take the resultant proposed altered development outside the scope of what could be permitted as amendments to all variations of the development application pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000.  It is appropriate at this point to note the terms of the regulation:

(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.

(3)   If the development application is for:

(a)   development for which concurrence is required, as referred to in s 79B of the Act, or

(b)   integrated development,

the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.

3. The changes that are proposed by the application to rely on the new plans and design involve essentially the same building envelope with minor variations as was proposed in the original development application.  The internal allocation of space within that envelope has been changed significantly as a result of matters that were originally contended by the council as standing as barriers to the original development proposal. 

4. In fundamental terms what has been involved is the deletion of a number of originally proposed residential levels with their replacement by a number of commercial levels but with a greater floor to ceiling separation than had been proposed for the residential levels.  The result of that being that there would be the same overall bulk but there would be a fewer number of levels, a reduction in total of two.

5. There is also proposed to be the introduction of a separate commercial lobby to serve the now proposed to be inserted commercial levels.  The original proposal was entirely residential above retail.  Nonetheless, that which remains proposed by the amendment for which approval is sought remains a mixed use development.

6. The applicant relies on decision of Jagot J in Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155; 145 LGERA 292 which adopts the description of the power to amend given by Talbot J in Ebsworth v SutherlandShire Council [2005] NSWLEC 603as being beneficial and facultative.

7. In Radray, her Honour sets out the nature of the changes between the two proposed developments and reached, to my mind, two significant conclusions that arise in these proceedings. One is a negative conclusion, that is that the test for granting permission to amend is not to be regarded as so narrow as to broadly equate to that of the power to modify a development consent that is contained in s 96 of the Environmental Planning and Assessment Act 1979 (the EPA Act) but also, second, that as her Honour observed, at [17], "There will be a changed development but one which in essence remains the same."

8. In [17], her Honour uses the words "amendments" or "variations" as creating the changed development. There does not seem to be in her discussion, and I am not otherwise aware of any decisions that deal with, whether or not there is to be regarded as a distinction between an amendment or a variation as set out in cl 55 of the regulation.

9. It seems to me that, in the ordinary course of construction, it is appropriate to assume that the Parliamentary Counsel, in drafting the clause in the fashion that has been provided, intended that there be meanings attached to each of those words separately.

10. Amendment, it would seem to me to be reasonable to conclude, constitutes tinkering with or adjustment of a development proposal by moving walls around and changing layouts and other things of that nature, that being an amendment to that which is originally proposed. 

11. Variation, on the other hand, it seems to me, to be given any separate work to be done encompasses the possibility as is here proposed for not merely the change of design but change of the nature of the development provided its overall essence is capable of being regarded as the same.

12. It seems to me in the circumstances of this application that the overall essence of the development remains as a mixed use development within a generally consistent building envelope as originally proposed in the development application and that the matters that have been altered by the applicant in proposing to rely on these amended plans are responsive to those matters that have been contended by the council as otherwise acting as an impediment.

13. I am not satisfied that the essence of the development has changed sufficiently to warrant refusal of leave to rely on the amended plans.

14. I note, in passing, although it is not a matter that would otherwise intrude, that the applicant has positively volunteered to meet the costs that would arise under s 97B of the EPA Act. However, that would have been a consequence in any event of the leave being granted.

15. I am, therefore, satisfied it is appropriate to grant the applicant leave to amend in the terms sought and I so order.

16. The amended application is set down before the Registrar for directions on Friday 18 March.

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Decision last updated: 07 April 2016