Chris Lonergan and Associates v Byron Shire Council

[2004] NSWLEC 468

Land and Environment Court

of New South Wales

CITATION:	Chris Lonergan & Associates v Byron Shire Council [2004] NSWLEC 468
PARTIES:	APPLICANT: Chris Lonergan & Associates RESPONDENT: Byron Shire Council
FILE NUMBER(S):	10983Amendment of 2002
CORAM:	Watts C at 1
KEY ISSUES:	Appeal :- Amended plans and costs
LEGISLATION CITED:	Land and Environment Court Rules 1996 - Environmental Planning and Assessment Regulation 2000, cl 55
CASES CITED:	Cullen Feng Pty Limited v Woollahra Council [2001] NSWLEC 295 - Dyldam Developments Pry Ltd v Holroyd City Council (2001] NSWLEC 204 - Ervin Mahrer & Partners and Partners v Strathfield Municipal Council [No 2] (2001) 115 LGERA 259 - Khouri v Burwood Council (2001) 115 LGERA 1- Scouts Australia v Ryde City Council (2002) 120 LGERA 98 - Tong Joo Pty Ltd v Mosman Council [2001] NSWLEC 87 - Urbis Pty Ltd v Sutherland Shire Council [2001] NSWLEC 147 - Vacik Pty Ltd v Penrith City Council, unreported, LEC, NSW, 18 February 1992
DATES OF HEARING:	20/08/2004
DATE OF JUDGMENT:	08/20/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr P W Larkin, barrister, instructed by Mr P Starkey, solicitor SOLICITORS: Somerville Laundry Lomax RESPONDENT: Mr C J Leggat, barrister, instructed by Ms K Gerathy, solicitor SOLICITORS: Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

20 August 2004

10983 of 2002
Chris Lonergan & Associates v Byron Shire Council

Notice of Motion

1 By notice of motion dated 16 June 2004, the applicant sought the Court’s leave to rely upon amended plans for the development the subject of the development application.

2 The respondent council filed a motion seeking either that the proceedings be dismissed with costs, or, alternatively, if the Court grants the applicant leave to rely upon amended plans, an order that the applicant pay the council's costs of notification of the amended plans and compensation for the council's costs incurred in consideration of the amended plans.

Power to amend development application

3 Clause 55 of the Environmental Planning and Assessment Regulation 2000 ("the EP&A Regulation") provides:

55 What is the procedure for amending a development application?

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

4 In the present Class 1 appeal, the Court may exercise the discretion of the Consent Authority to permit an amendment to the application under cl 55 (Land and Environment Court Act 1979 s 39(2): Ervin Mahrer & Partners and Partners v Strathfield Municipal Council [No 2] (2001) 115 LGERA 259 at 276 [93]; Scouts Australia v Ryde City Council (2002) 120 LGERA 98 at 106-107 [25].

5 Pt 13 r 16(bl) of the Land and Environment Court Rules 1996 relevantly provides that where proceedings have been fixed for hearing, the applicant shall not be entitled to rely upon amended plans of the development proposal which the applicant initiates except with the consent of the respondent or by leave of the Court.

6 The applicant’s representative submitted that the scope and extent of the statutory power of amendment created by cl 55 of the Regulation permits a development application to be changed or altered resulting in an alteration, variation or modification to the proposed development: Ervin Mahrer & Partners and Partners v Strathfield Municipal Council [No 2] (2001) 115 LGERA 259 at 283 [139]. This power it was submitted is extremely broad and is not to be read down by qualifications relating to the extent of the modification sought: Ervin Mahrer at 281 [128].

7 As to this first question the council’s representative submitted that the proposal is for a new development and the relevant characteristics of the new development are described by Mr C Power in paragraph 8 of his affidavit sworn 20 July 2004 and these are contrasted with the relevant characteristics of the former development.

8 The respondent’s representative submitted that the characteristics are sufficiently different in nature and extent to conclude that the proposal is for a new development and therefore leave to amend should not be granted.

9 There was no significant difference between the parties as to the extent of the physical changes. The development remained a community title subdivision and there were changes to; the extent of cut and fill for roads and site improvements, removal of vegetation and precautions against the impact of bushfire. Although the number of lots has been halved, the sewerage treatment plant and transpiration bed has been moved and the position of lots has changed, I am satisfied that there would be no new element of the design that would be in substance a new development.

10 I am not persuaded by the respondent’s submissions in this regard and I have concluded that the amendment is such as to be within power of the Court to entertain.

Discretion to permit amendment

11 As I have concluded that the proposed amendment is within power, the next question is whether the Court, in its discretion, should grant leave to permit amendment of the plans.

12 The Court would not generally exercise its discretion to permit an amendment if the changes are “so significant as to convert the original development concept into something substantially different”:Ervin Mahrer & Partners and Partners v Strathfield Municipal Council [No 2] (2001) 115 LGERA 259 at 281-282 [128-129]. I have taken the term “substantially” used in this context to mean “essentially or materially or having the same essence” (Stein J in Vacik Pty Ltd v Penrith City Council, unreported, LEC, NSW, 18 February 1992.

13 The test for whether leave to rely on amended plans should be granted is whether the changes made are so substantial that the application must be regarded as a new application: Khouri v Burwood Council (2001) 115 LGERA 1 (Talbot J)

It is not an appropriate test to merely have regard to the nature of the use of the proposed building. The building in all its elements, and in particular those external elements which are likely to have some effect or impact outside the site (in terms of traffic, pedestrian use, numbers of residents, and the like) and those internal elements which have some bearing on amenity for the occupants must be considered.

14 In Dyldam Developments Pry Ltd v Holroyd City Council (2001] NSWLEC 204, Pearlman J refused leave to amend the plans. Her Honour said at [8]

...this is a question of the Court's power to entertain a class 1 appeal. I take the view that the difference here between the plans is so substantial as to render the proposed development substantially different from that, which is the subject of the original development application to the extent that the amended plans constitute a new development application. On that basis I take the view that the Court is not empowered to entertain the appeal on the amended plans.

15 In Tong Joo Pty Ltd v Mosman Council [2001] NSWLEC 87, Bignold J held that the amendment did not convert the proposal into a new development. However, his Honour granted leave upon terms, which compensated the council in terms of costs - both costs thrown away and costs incurred by virtue of the belated injection into the proceedings of the amended plans.

16 I consider that the proposed amendments, in this case, would not convert the proposal into what is, effectively, a new application as the amended application would have the same essential underlying characteristics as the ingredients of the original development: Urbis Pty Ltd v Sutherland Shire Council [2001] NSWLEC 147 at [24]-[25]; Dyldam Developments Pty Ltd v Holroyd City Council [2001] NSWLEC 204 at [8], Cullen Feng Pty Limited v Woollahra Council [2001] NSWLEC 295 at [17].

17 Despite there being likely different environmental impacts I am satisfied that the development as amended would be substantially the same: Cullen Feng Pty Limited v Woollahra Council [2001] NSWLEC 295 at [17].

18 The Court in exercising its discretion under Pt 13 r16(bl) of the Land and Environment Court Rules 1996 as to whether to permit the amendment, it is relevant to take into account Pt 1 r 5A (1) and (2):

5A Overriding purpose
(1) The overriding purpose of these rules, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in such proceedings.
(2) The Court must seek to give effect to the overriding purpose when it exercises any power given to it by the rules or when interpreting any rule.

19 The proposed amendments are set out in para 5 of the affidavit of Chris Lonergan sworn 16 June 2004. In summary, they are:

· Subdivision reduced from 18 lots to 10 lots (9 lots plus 1 residue lot)

· Previously proposed lots 6-15 reconfigured to produce three lots (8, 9 and 10) plus part community allotment for effluent disposal.

· Previously proposed lots 2-3 consolidated into one allotment.

· Different area of site relied upon for effluent disposal (area away from adjoining residences and areas of high water table).

· Circular access road replaced by cul-de-sac road.

· Reduced amounts of cut and fill in lots 8-10.

· No external fire egress trail required.

20 Mr Power, on behalf of the respondent council, in his affidavit sworn on 20 July 2004 summarised the differences at para 8 however, he considered the proposed amendments to be so different from the application originally before the Court that a fresh application ought to be lodged, (para 10).

21 The respondent’s representative submitted that matters particularly relevant to a consideration of the merits of the application before the Court in respect of amended plans are:

(i) the Applicant's delay in preparing amended plans;

(ii) the omission from the plans and reports of relevant and necessary details;

(iii) the abuse of process involved in using the resources of the Court and the council to re-design a development that was contemptuous of the applicable planning instruments and site constraints;

(iv) the significant amount of un-reimbursed financial expenditure of the council. In such circumstances there is a proper basis for refusing leave to amend.

22 As detailed in the affidavit of Ms Gerathy sworn 16 August 2004:

· On 24 March 2003, the proceedings were fixed for hearing for four days commencing 14 July 2003;

· On 4 June 2003, the applicant filed a Notice of Motion to rely upon amended plans;

· On 12 June 2003, the Registrar granted leave for the applicant to rely upon the amended plans;

· At the commencement of the hearing on 14 July 2003, the applicant made an application for adjournment. Ultimately the matter was adjourned by consent and orders were made by consent that the applicant pay the respondent's costs thrown away;

· On 12 September 2003, the Registrar directed the applicant to file and serve further amended plans and supporting: documentations by 22 September 2003 and a Notice of Motion to seek leave to rely on the amended plans by 30 September 2003;

· The matter was set down for hearing for 5 days commencing 2 February 2004;

· On 30 January 2004, the applicant sent the respondent's solicitor further amended plans upon which it sought to rely;

· The hearing on 2 February 2004 was adjourned following the applicant's consent to an order to pay the Council's costs thrown away by reason of the adjournment.

23 The respondent’s representative submitted that the applicants have already amended their plans three times and granting another amendment would not be conducive to the just, quick and cheap resolution of this matter.

24 The respondent’s representative also submitted that the amended plans contain deficiencies, which include:

· Lack of legends;

· Lack of creek bank definitions;

· No vegetation plans;

· No overlay of constraints;

· Lack of sewer definitions;

· No drainage details; and

· Lack of asset protection zone definitions;

25 It was also submitted by the respondent that the applicants have failed to comply with Court orders and directions and failed to:

(i) provide a certified plan by a registered surveyor as to topography:

(ii) a new Statement of Environmental Effects which is essential given the changes in impact of the proposed plans;

(iii) "...act expeditiously with orders relating to amended plans."

26 Despite there being ample time for the applicants to submit amended plans to the council, the further plans were submitted to the council on 25 June 2004.

27 The respondent sought an order that the proceedings be dismissed, and referred to Pt 12 r2 that states that:

1. If an applicant does not within a reasonable time take any step necessary to bring any proceedings to a hearing, or unreasonably takes any step to avoid the proceedings being brought to a hearing, the Court may, on the application of the respondent, order on terms that the proceedings be dismissed or make such other order as the Court thinks fit.
2. The Court may at any time prior to the hearing, if satisfied that there is no good reason for the failure of the applicant to prosecute the proceedings, dismiss those proceedings.

28 The respondent submitted that as a result of the applicant's actions, there has been and continues to be, significant prejudice to the council which cannot be overcome by costs orders alone.

29 Despite the submissions of the respondent, I am, persuaded by the applicant’s submissions that there has been a bone fide attempt to enhance the development and to ameliorate the impacts. I allow the amendments. I am satisfied that the respondents submissions in regard to the tardiness of the applicant have some merit however I am not persuaded to dismiss the application on those grounds.

Costs

30 The applicant’s representative submitted that there should be no further costs awarded against the applicant. Already the applicant has agreed to pay $40,000 in costs and an award for costs thrown away is still to be assessed.

31 The respondent’s representative submitted that were the Court minded to allow the applicant to rely on the amended plans, and not minded to dismiss the application, the respondent seeks orders that:

The applicant pay to the Council the sum of $270.00 to defray the costs incurred in public notification pursuant to the Environmental Planning and Assessment Regulation 2000 of the amended application within 7 days of the date of these orders.
The applicant pay to the Council the sum of $38,950.00 as compensation for the Council's costs incurred in consideration of the amended plans including costs of the applicant's Motion.

32 The council’s representative submitted that the council has incurred substantial costs to date in assessing the applicant's original plans and subsequent amendments. Two previous awards for costs to cover those thrown away by the respondent have been inadequate to address the expenses incurred to date.

33 I am satisfied that the council has been prejudiced in having to assess two previous applications and is now to be asked to assess a further amended application. I note the payments made by the applicant so far. I note that the award for costs thrown away is yet to be quantified and or taxed. In respect of this notice of motion, I would recommend to the Chief Judge that a further costs order be made, limited to an amount equal to the normal development application fees and any advertising costs if they are not included in those fees.

34 The council sought costs for the motion and I have concluded that they should not be recommended, as the applicant has been successful in its motion.

Orders

35 My orders are:

1. That the applicant is permitted to rely upon amended plans for the development the subject of the development application.

2. I recommend to the Chief Judge that a further costs order be made, limited to an amount equal to the normal development application fees and any advertising costs if they are not included in those fees.

3. I recommend that there be no order as to costs of the motion.

4. In the event that the parties, having considered the Court’s reasons and recommendations, consent to the making of an order for costs: (a) I grant leave to the parties to file short minutes of orders recording the agreement in the registry and (b) I vacate the reference to the Chief Judge.

5. The applicant is directed to provide a land survey to the respondent within 28 days.

6. The matter is set down for a directions hearing 13 October 2004 at 9.30am before this commissioner.

S J Watts

sw