Cachia v Manly Council (No 2) - [2009] NSWLEC 1107

Land and Environment Court

of New South Wales

CITATION: Cachia v Manly Council (No 2) [2009] NSWLEC 1107

PARTIES:
AAPPLICANT
Ms C Cachia
RESPONDENT
Manly Council

FILE NUMBER(S): 10908 of 2008

CORAM: Moore SC

KEY ISSUES: COSTS - DEVELOPMENT APPLICATION :-
Amended plans
Mandatory costs order
Meaning of "minor amendment"

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 96(1A) and s 97B(1)
Environmental Planning and Assessment Amendment Bill 2008
Interpretation Act 1987, s8 and s 34
Local Government Act 1993, s 87

CASES CITED: Cachia v Manly Council NSW LEC 1035
Coshott v Woollahra Council [1996] NSW LEC 256

DATES OF HEARING: 16 March 2009

EX TEMPORE JUDGMENT DATE: 17 March 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Pickles, barrister
RESPONDENT
Ms C Schofield, solicitor
Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

17 March 2009

08/10908 Catherine Cachia V Manly Council

JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: On 11 February last I gave a merit decision in this matter (see Cachia v Manly Council NSW LEC 1035). In that decision, I determined a preliminary question concerning the location of the first floor setback that was appropriate on the northern boundary of the site for the dwelling proposed by the applicant. That decision was given in the context of a vigorous contest between the parties about:

the acceptability of the impact of the proposal on the views of two properties (those to the immediate rear and to the south-west);

the presentation of the proposal in its streetscape,

non-compliance with the rear setback requirements of the Manly Development Control Plan; and

a number of other numerical non-compliances with this Development Control Plan.

2 That decision resolved the issues of the setback at the first level on the northern side and the intrusions into the rear setback requirements of the Development Control Plan. As a consequence of that decision, for the applicant to proceed further, it will be necessary, if the proceedings are to continue, for the applicant to file an amended development application.

3 The consequence of that and of the date of filing of the original appeal is that the provisions of s 97B of the Environmental Planning and Assessment Act 1979 are triggered for consideration if the applicant were to be given leave to file an amended development application. Section 97B deals with the issue of costs that are payable if such an amended development application is filed with the consent of the Court. The provision contains a number of steps. The first is that there has to be an allowing by the Court of the filing of an amended development application. The second, but not necessarily requiring to be dealt with sequentially with the first, is a consideration of whether the amendments that would be comprehended by such an amended development application constitute “a minor amendment” or not.

4 If both of those steps are taken,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWLEC 1107
Decision Date: 17 March 2009

CaseChat Overview and Summary

In Cachia v Manly Council (No 2), the applicant, Ms Cachia, appealed against the Manly Council's decision to refuse development consent for a proposed dwelling at 9 Seaview Street, Balgowlah. The Land and Environment Court, presided over by Senior Commissioner Moore, was tasked with determining whether the amendments proposed by Ms Cachia to her development application constituted a "minor amendment" under the Environmental Planning and Assessment Act 1979. This determination was crucial as it would trigger a mandatory costs order if the amendments were deemed not minor.

The central legal issue revolved around the interpretation of the term "minor amendment" as used in s 97B(2) of the Environmental Planning and Assessment Act 1979. The Court had to assess whether the proposed amendments to the development application were minor in nature, considering the overall effect of the changes, and not merely the number of amendments. The Court noted that the term "minor amendment" should be interpreted in the context of the relative or overall effect of the changes, rather than a literal interpretation that would consider each amendment individually.

Senior Commissioner Moore examined the legislative intent behind s 97B(2), considering the explanatory notes and speeches made during the second reading of the Environmental Planning and Assessment Amendment Bill 2008. While these sources did not provide clear guidance, the Commissioner looked to analogous provisions in other statutes and case law for further insight. The Commissioner concluded that the amendments proposed by Ms Cachia were not minor, as they significantly altered the setback of the upper level from the northern boundary and the streetscape façade of the building. These changes, combined with internal rearrangements, did not meet the threshold of being minor, as they would have a significant impact on neighbouring properties and the overall character of the development.

Given that Ms Cachia did not wish to proceed with the proposed amendments, the Court dismissed the appeal and upheld the Council's decision to refuse development consent for the proposed dwelling. The Court also made an order for the return of the exhibits.

Orders