Castle Construction v North Sydney Council (No 2)

[2006] NSWLEC 124

Land and Environment Court

of New South Wales

CITATION:	Castle Construction v North Sydney Council (No 2) [2006] NSWLEC 124
PARTIES:	Applicant: Castle Constructions Pty Ltd Respondent: North Sydney Council
FILE NUMBER(S):	11010 of 2005
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- leave to rely on amended proposal
LEGISLATION CITED:	s 55 of Environmental Planning and Assessment Regulation 2000 (NSW)
CASES CITED:	Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 at [40]; Radray Constructions v Hornsby Shire Council (145 LGRA 292-299
DATES OF HEARING:	30/08/2006
DATE OF JUDGMENT:	09/01/2006
LEGAL REPRESENTATIVES:	Applicant: Mr T Robertson, SC Respondent: Ms D Townsend, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

11010 of 2005 Castle Constructions Pty Ltd v North Sydney Council (No 2)

Decision on application to rely on amended drawings

1 Senior Commissioner: This is an appeal against the refusal by North Sydney Council (the council) of a development application to demolish the existing buildings and erect a 31-storey commercial/residential building consisting of basement parking, a podium of five commercial floors and a tower of 26 residential floors. I heard the merit appeal in December 2005 and gave judgment on 12 January 2006 (NSWL:EC 5), dismissing the application. The applicant appealed against my judgment under s56A of the Land and Environment Court Act 1979. Talbot J heard the s56A appeal on 20 and 21 June 2006 and gave judgment on 3 August 2006 (NSLEC 468), setting aside my orders and remitting the matter to a commissioner. The Chief Judge has remitted the matter to me.

2 At a mention on 30 August 2006 the parties appeared before me in order to determine the further course of the appeal. The council’s position is that the matter should be determined on the basis of Talbot J’s judgment on the same application that was before me during the merit hearing. The applicant seeks leave to amend the application. In the applicant’s submission the matter should be determined on the findings of the Talbot judgment, but as they relate to the amended proposal. The question for my determination is whether granting leave to rely on an amended proposal is appropriate in the circumstances of this case.

3 In response to my enquiry during the mention, neither advocate, Mr T Robertson or Ms D Townsend, was able to cite a case in which an applicant changed its proposal after the determination of the merit hearing and the s56A judgment. After spending eleven years with the Court, I am also not aware of such an event. This does not mean that amending a proposal has never been allowed after a successful s56 appeal, but the fact that three people experienced in the Court’s affairs have not heard of it makes it unlikely that it ever happened.

4 The affidavit of the applicant’s solicitor, Mr Peter Douglas McLachlan, dated 25 August 2006, sets out the intended changes to the proposal. The major changes are a reduction in height by 32 metres (10 levels) and an increase in the setback from the southern boundary the extent of which is not described.

5 An important circumstance of the case is that the development application before the council was for a thirty-five storey or a thirty-six-storey building. This was the proposal that was advertised and to which the objectors responded. Shortly before the hearing the applicant reduced the height to thirty-one storeys. My understanding is that the council did not object to the change.

6 The power to allow amendments to a development application before it is determined resides in cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW), and that power is available to the Court by virtue of s 39(2) of the Land and Environment Court Act 1979 (NSW). Judgments of the Court have held that cl 55 of the Regulations is beneficial and facultative (Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 at [40]); and should be given the widest interpretation which its language will permit (Radray Constructions v Hornsby Shire Council (145 LGRA 292-299). It is common ground therefore that I have the discretion to grant the applicant leave to rely on amended drawings; the only question is whether I should exercise that discretion in a case where a decision and orders have been made, and the orders have been set aside because the decision was found to contain errors of law. It seems to me that the criterion for answering that question is whether granting the leave is in the interest of justice.

7 Giving a wide interpretation to cl 55 of the Regulation and treating it as a beneficial provision suggests that the fact that the change to a proposal is significant should not, by itself, be a reason to refuse leave. There is no doubt that cutting off ten floors of a thirty-one-storey building is a significant change. Given that the proposal was thirty-five (or thirty-six) storeys high when it was submitted, the change from the original application is even greater. Such a change would necessitate a re-opening of the case at least in relation to the main issue of bulk, height and scale.

8 However, I would not refuse leave to rely on amended drawings on the basis only that the amended proposal is too different from the original. In my opinion, the main factors against granting leave are the stage in the process when the leave is sought and the fact that the applicant has already amended the proposal once. I deal with these two factors in turn.

9 Section 56A of the Act allows a party to challenge a commissioner’s decision on a question of law. Given that most commissioners have no legal qualification or experience, it protects the parties from a decision that has been reached through a reasoning process containing an error of law. The appeal is only on a question of law and not on the merit of a decision. It seems to me that the process envisaged by the section is that, where a merit decision is found to contain an error of law, it should be reconsidered so as to eliminate that error. When a decision is remitted to a commissioner, he or she is required to reconsider the merit issues in the light of the s 56A judgment. However, the merit issues that the commissioner reconsiders are the same as before and they relate to the same application. If the application changes, an additional dimension is introduced that has nothing to do with the error of law that was the basis of the s 56A appeal.

10 I do not think that it is in the interest of justice to grant leave to amend a proposal following a s 56A judgment. If leave were granted at this stage, s 56A would become an avenue for amending proposals after an unfavourable merit judgment, rather than what it is meant to be: a protection against a decision tainted by errors of law. I am strengthened in this conclusion by the fact that neither Mr Robertson, nor Ms Townsend, nor I know of a case where this course of action was requested, let alone granted. This is despite the fact that the Court grants leave to rely on amended drawings in several hundred cases each year. All the judgments to which Mr Robertson referred me dealt with the question of amended drawings before the hearing.

11 The fact that the applicant has already relied on leave to amend drawings before the merit hearing commenced is also a consideration against granting leave at this stage. The applicant made the decision to reduce the height of the building at that time in full knowledge of the planning regime and the council’s position on the appropriate height. The council wanted a lower height than thirty-one storeys (and indeed lower than twenty-one storeys, which is now being suggested). Despite this, the applicant elected to amend its proposal to thirty-one storeys. Clause 55 enables an applicant to respond to a council’s or an expert’s position in relation to a development proposal. Where that position does not change, only one amendment is justified. If the clause were interpreted as justifying a series of amendments, it would encourage applicants to apply for the largest possible development, and then whittle it down gradually by a series of amendments. To the extent that cl 55 is facultative and beneficial, the applicant has already benefited from it once.

12 I have considered Mr Robertson’s submission that the applicant no longer wants to build a thirty-one storey building and therefore there would be no point in hearing an appeal dealing with such a building. If the applicant has lost interest in the proposal as it was during the merit appeal, it should discontinue the appeal and make a development application for a building that it does want to build.

13 For the above reasons I refuse leave for the applicant to rely on amended drawings.

Directions

1. Any further evidence to be filed and served by 28 September 2006.

2. Refer to Registrar’s call-over on 6 September 2006 to list the matter for one-day hearing before the Senior Commissioner as soon as possible after 9 October 2006.

John Roseth
Senior Commissioner