Cornale v Hornsby Shire Council [1998] Nswlec 228 (5 June 1998)

[1998] NSWLEC 228

Land and Environment Court

of New South Wales

CITATION:	Cornale v Hornsby Shire Council [1998] NSWLEC 228 (5 June 1998) [1998] NSWLEC 58
PARTIES:	Cornale v Hornsby Shire Council
FILE NUMBER(S):	10391 of 1997
CORAM:	Talbot J
KEY ISSUES:	:- Development whether amendment or new development - whether amendment amounts to fresh development application
LEGISLATION CITED:
CASES CITED:	Harris v Rockdale City Council (unreported 8 August 1997, 10299 of 1997) ; IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62 at p 90 ; Parkes Developments Pty Ltd v Cambridge Credit Corporation Ltd and Anor (1974) 33 LGRA 196
DATES OF HEARING:	06/05/98
EX TEMPORE JUDGMENT DATE :	06/05/1998
LEGAL REPRESENTATIVES:	Mr G Newport (Barrister) Mr R Graham (Solicitor)

JUDGMENT:

EX TEMPORE REASONS FOR JUDGMENT ON APPLICATION BY WAY OF NOTICE OF MOTION FOR AN ORDER THAT THE APPEAL BASED UPON AMENDED PLANS NOW BEFORE THE COURT BE STRUCK OUT.

1. HIS HONOUR: The original plans lodged in support of a development application by the applicant in these proceedings, the respondent to the notice of motion, showed the proposed development of four dwellings at Lot 37, 7 Loch Maree Avenue, Thornleigh.

2. The respondent to the notice of motion lodged amended plans after an appeal was made to this Court against a determination by the council to refuse the development application on 10 October 1996.

3. The amended plans which are the subject of consideration before the Court today are second further amended plans and they describe a development which is essentially the same in respect of one of the buildings, that is, the building nearest the street frontage. In the original plans that building was shown as comprising two 2-level units facing east to an internal driveway or right of way with a side elevation to the street.

4. Notwithstanding the omission of any plan which shows the upper level of that front building, Mr Graham for the council concedes that it is for present purposes effectively the same proposal as that contained in the original application. It has the same footprint. It appears to have the same envelope and provides accommodation that is not materially different.

5. Problems arise in relation to what is now proposed for the rear dwelling.

6. The council contends that the changes made in respect of the rear building are such that the proposal is now a different development and should be treated as a new development rather than an amendment to the original application.

7. The council has filed and relies upon a notice of motion seeking an order that the appeal based upon the plans which are now referred to as the second further amended plans be struck out.

8. The plans which the respondent to the notice of motion now seeks to rely upon show that the rear building will comprise one single storey dwelling, whereas previously that building in the original plans was shown to comprise two separate dwellings within the building.

9. In so far as the Court is able to do on the basis of the plans as they are presently drawn (and I think Mr Graham concedes), the rear building will have essentially the same footprint, height, dimensions and external appearance as the building depicted in the original plans. In other words, for all intents and purposes externally it will have the same appearance and the mere presence of the building arguably is likely to have the same impact as the building originally proposed would have had.

10. The essential question that arises is whether a building which was originally proposed to contain two dwellings is substantially the same development as a building which is proposed to accommodate only one dwelling to the extent that the changes can be regarded as an amendment to the original plans, thereby entitling the respondent to the notice of motion to proceed on the same development application.

11. Arguably the environmental impacts which have to be considered pursuant to s 90 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) may not be different in any discernible respect but that is not something which the Court can decide at this stage in the proceedings.

12. The Court should be careful not to take a too technical approach to these matters and should regard the proceedings for what they are, namely, an application for planning approval, and that the Court is asked to consider on appeal whether, as a matter of merit, a development which is otherwise permissible should proceed.

13. Nevertheless, the legislation controlling development, and in particular the EP&A Act and planning instruments made pursuant thereto, provide for consideration to be undertaken and procedures to be followed which in large measure depend upon the description and identity of the development proposed.

14. In the present case what was originally proposed was four dwellings. What is now proposed is three dwellings. Further, by directing the focus to the rear building what was originally proposed within the building was two dwellings. What is now proposed is only one dwelling.

15. Notwithstanding the very distinct and emphatic similarity in the physical attributes of the building, the Court is of the opinion that the change in the proposed internal configuration and use of the rear building is as a matter of fact and degree to a sufficient extent for the changes not to be recognised as an amendment to the original plans but rather as a new proposal for a different development.

16. The respondent to the notice of motion might well consider that the Court has taken a fine line and adopted a narrow approach. That may well be an opinion that is open to the respondent to the notice of motion in the particular circumstances of this case. That is because the changes that are here proposed to a very large extent do not impact upon many of the matters that are to be considered before development consent can be forthcoming.

17. As I have said, it is a question of fact and degree in every case.

18. The fact in this case is that the development of the rear building and its proposed use has been changed in a dramatic and significant way by changing the use to something which is entirely different.

19. During the course of submissions attempts were made to draw parallel examples of what might have been the cases in other circumstances, particularly in respect of multi-unit development. Reference was made to what were totally different circumstances that I had to consider in Harris v Rockdale City Council (unreported 8 August 1997, 10299 of 1997) and the observations made by the then Chief Judge of this Court in IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62 at p 90 in a different context where his Honour referred to the deliberations of the Court of Appeal in Parkes Developments Pty Ltd v Cambridge Credit Corporation Ltd and Anor (1974) 33 LGRA 196.

20. Examples of the factual circumstances and considerations which lead to a conclusion about fact and degree of changes in other cases are not truly helpful, as I think both parties acknowledged (and in particular Mr Newport), in determining what proper regard should be given to changes in another case.

21. I am satisfied, however, that where a proposal which originally proposed two dwellings in the one building is changed to the extent of proposing only one dwelling in that same building is a substantial and significant change, notwithstanding that it is only one of two buildings on the site.

22. I therefore determine that the amended plans now before the Court are a new and fresh set of plans which are not capable of being regarded as an amendment and if the respondent to the notice of motion, the applicant in the proceedings, proposes to rely upon those plans it will be required to lodge a further development application.

23. The second order I make is that the appeal be dismissed. I make no order as to costs. Exhibits may be returned.