Basemount Pty Limited and Or v Baulkham Hills Shire Council

[2001] NSWLEC 95

Land and Environment Court

of New South Wales

CITATION:

Basemount Pty Limited & Or v Baulkham Hills Shire Council [2001] NSWLEC 95

PARTIES:

APPLICANT
Basemount Pty Limited & Or

RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S):

11017 of 2000

CORAM:

Cowdroy J

KEY ISSUES:

Development Application :- notice of motion to substitute amended plans for development - whether alterations substantial - whether council had considered amended plans - notice of motion refused.

LEGISLATION CITED:

Land and Environment Court Rules 1996 Pt 13 r 16
Environmental Planning and Assessment Act 1979 s 97

CASES CITED:

Cambridge Credit Corporation Limited & Anor v Parkes Developments Pty Limited (1974) 2 NSWLR 590;
Andari-Diakanastasi v Rockdale City Council [2000] NSWLEC 250 ;
Vasic Pty Limited v Penrith City Council (18 February 1992, NSWLEC, No 10242 of 1991, unreported)

DATES OF HEARING:

17/4/01

EX TEMPORE
JUDGMENT DATE :

04/17/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Pickles (Barrister)

SOLICITORS
n/a

RESPONDENT
Ms A Hemmings (Solicitor)

SOLICITORS
Corrs Chambers Wesgarth

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 11017 of 2000
CORAM: Cowdroy J
DECISION DATE: 17/4/01

Basemount Pty Limited and Gaofind Pty Limited

v

Baulkham Hills Shire Council

JUDGMENT

1. By notice of motion filed on 27 March 2001 the applicant seeks leave of the Court pursuant to Pt 13 r 16 of the Land and Environment Court Rules 1996 to substitute amended plans (“the amended plans”) at the hearing of the appeal.

2. The development application refused by the respondent (“the council”) relates to a forty-two unit residential complex (“the development”) located between Old Northern Road and Garthowen Crescent, Castle Hill. The development is to encompass two separate buildings containing residential units in buildings known as building A and building B. Sixteen units are proposed in building A and twenty-six units in building B.

3. The amended plans make changes to various portions of both buildings, and changes are proposed to landscaping as indicated in plans LO1A, substituting for LO1. Landscaping changes are not significant. There are also changes to other parts of the development which I shall refer to in more detail.

4. The original plans provided parking beneath building A on one level. Stacker parking, that is, parking one vehicle behind the other, was proposed. However, due to the adoption by the respondent of its Development Control Plan No 23 such type of parking is not permissible in future developments. For this reason the applicant has sought to rely upon amended plans which would create an entirely new layout for parking.

5. The new layout would involve not only re-adjustment of the parking spaces beneath building B but create a whole new level of parking. The changes would also affect the car parking in building A. Although it is urged by the applicant that the footprint of a car park is in fact reduced to that originally proposed, the fact is that the creation of a whole new level of parking is significant.

6. There are changes proposed to various units within the building. It is proposed to delete level four of building B and as a consequence three units would be deleted from such building. Furthermore a new unit is proposed with the use of dormer windows above level three. This change would result in a change to the roof line of the building.

7. The external appearance of the building would be substantially altered. Whether such changes would result in any environmental impact has not been assessed. Similarly, whether any environmental impacts result from the change of car parking has not been assessed.

8. Within the unit complex contained in building B there are various alterations, for example, units 19, 27 and 34 have their terraces adjusted to different positions. Unit 34 has beside it a new staircase providing access to the new unit above, which has resulted in internal changes to unit 34.

9. As a consequence of the change to the layout as proposed in the new plan DAO7B, five units are totally re-positioned in order to situate new units numbered 36 and 39 into the roof. Further unit 39 is 10 m closer than it had previously been to the eastern boundary although the vertical wall clearly against this boundary has not changed. Units 40, 41 and 42 have been deleted.

10. In considering this application it is essential to refer to s 97 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). Section 97(1) of the EP&A Act provides:-

An applicant who is dissatisfied with the determination of the consent authority with respect to the applicant’s development application (including a determination on a review under s 82A) may appeal to the Court within 12 months after certain specified events.

11. In Cambridge Credit Corporation Limited & Anor v Parkes Developments Pty Limited (1974) 2 NSWLR 590 the Court of Appeal considered the position of a council which determined a development application which was different to the publicly advertised proposal. Glass JA at 616 said:-

I agree with Hope JA that the answer to the question should be that in approving the amended design of block C the council was not dealing with the application of which notice had been duly given.

He continued:-

In my opinion the council by consenting to this application without further advertisement failed to fulfil the statutory requirements binding upon it and its consent was therefore invalid.

12. This motion raises the question whether council has given any determination in respect of the present application, that is, whether council has considered the proposed plans or whether it can be said, to adopt the words of s 96(1A) of the EP&A Act, the development is ‘substantially the same development’ as that considered by council.

13. In Vasic Pty Limited v Penrith City Council (18 February 1992, NSWLEC, No 10242 of 1991, unreported) Stein J was concerned with the interpretation of the word ‘substantially’ for the purposes of s 102(1)(a) of the EP&A Act which is now contained in s 96(1A) thereof. His Honour said:-

In my opinion ‘substantially’ when used in the section means essentially or materially or having the same essence.

More recently Talbot J in Andari-Diakanastasi v Rockdale City Council [2000] NSWLEC 250 determined that proposed changes to a development, if allowed, would constitute a different development to that which had been considered by council. In refusing leave His Honour at par [36] said:-

In this case I do not place a great deal of weight on the changes to the internal configuration of the buildings, however, in totality when one compares one set of plans to the other it is difficult to find common elements. The two sets of plans must be regarded as being in contrast to each other.

14. In this case the internal changes, namely, to the balconies of units 19, 27, and 34, are minimal. The changes to the fourth floor are substantial as are the changes to the car park. The consequential alteration to the roof line could be substantial and could have environmental impacts but these have not been determined by council.

15. An applicant who is ‘dissatisfied with the determination of a consent authority’ is provided a right of appeal by s 97(1) of the EP&A Act. However it could not be said that the council has made a determination in respect of the proposed development because it is different from that which it has considered. There may be a reduction in environmental impacts resulting from the proposed changes or possibly greater impacts. The development for which consent is now sought has not been assessed and there is no council determination made in respect of them.

16. In these circumstances if the Court granted leave it would hear an appeal in respect of a development application which council had never considered. As such the Court would be exceeding its jurisdiction since the appeal is not an appeal from the determination of council.

Orders

17. For these reasons the Court orders that:-

1. The motion for leave to rely upon amended plans be refused.

2. Costs reserved.

3. The council file any submissions in support of its application for costs within seven days.

4. The applicant to file any submissions in reply within seven days of receipt of the council’s submissions.

5. The exhibits be returned.