Cyril Smith and Associates Pty Ltd v Waverley Council
[2001] NSWLEC 150
•05/25/2001
Land and Environment Court
of New South Wales
CITATION: Cyril Smith & Associates Pty Ltd v Waverley Council [2001] NSWLEC 150 PARTIES: APPLICANT
RESPONDENT
Cyril Smith & Associates Pty Ltd
Waverley CouncilFILE NUMBER(S): 10838 of 2000 CORAM: Pearlman J KEY ISSUES: Development Application :- amended plans - whether same development LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 cl 55 CASES CITED: Willoughby Municipal Council v Manchil [1974] 2 NSWLR 415 DATES OF HEARING: 25/05/2001 DATE OF JUDGMENT:
05/25/2001LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr C W McEwen (Barrister)
SOLICITORS
Staunton Beattie
Mr G B Newport (Barrister)
SOLICITORS
Waverley Council
JUDGMENT:
IN THE LAND AND 10838 of 2000
ENVIRONMENT COURT
Pearlman J
OF NEW SOUTH WALES 25 May 2001
- Applicant
Respondent
1. In these class 1 proceedings, two notices of motion arise for determination. By its notice of motion, the council seeks the determination of the following question:
Whether the proposed amendments by Drawings Nos DA A01E - DA A20E dated 9 April 2001 and received by the council on 18 April 2001 to Development Application LD332/00 amount to a new Development Application.
2. The applicant by its notice of motion seeks leave to rely on amended plans at the hearing of this appeal, those amended plans being the same plans as referred to in the council’s notice of motion, and to which I will refer to as “the April plans”.
3. I have had an opportunity to consider the plans which show amendments to the development application having been made over a period of time. The original plans which accompanied the development application were dated May 2000 (“the May plans”). Amendments were made in September 2000 (“the September plans”) and again in December 2000 (“the December plans”). The September plans and December plans were advertised.
4. The council has in fact refused to grant development consent based on the May plans, as changed by the September plans. The council’s stance, however, is that the April plans so change the development application that it amounts to a new development application. That is the issue before the Court, in effect, arising out of both notices of motion.
5. A preliminary point is whether the Court should compare the development application accompanied by the May plans, as against the April plans, or whether the Court should compare the development application based on the December plans, as against the April plans. In my opinion the latter is correct. The Court is required to consider the development application. The development application may be amended under the provisions of cl 55 of the Environmental Planning and Assessment Regulation 2000, which relevantly provides as follows:
55(1) A development application may be amended or varied by the applicant, (but only with the agreement of the consent authority) at any time before the application is determined.
6. The amendments made by the September plans and by the December plans, were, as I have said, both advertised. I take the view that the Court is entitled to infer that the council accepted those amendments and that the amendments were made pursuant to cl 55. In this case, nothing much turns on that point, because a comparison of all the plans does not reveal so substantial a change between the May plans as varied by the September plans, and as varied by the December plans, as to make it essential to go back to the May plans to see the true nature of the development. I deal with this as a matter of principle because it was raised.
7. There are many changes that have been made and that can be discerned by comparison of the May plans as amended and the April plans. It is sufficient if I outline them in general terms, and without the considerable detail that the plans reveal.
(1) There is a reduction in the number of units from 31 to 25.
(2) There is a reduction in size of some of the units, their interiors have been reconfigured.
(3) Perhaps most importantly, there is a change in the elevation to Caddigal Place. As originally proposed, that is, by the May plans as amended, there was to be a three level residential unit building along the elevation to Caddigal Place, but that is now to be converted in effect into three separate buildings with a view corridor in between. They remain three storeys, but they are separate. In effect the footprint has changed.
(4) There has been a change in the setback to Caddigal Place, and to the corner of Caddigal Place on the south-western side. The setbacks are not extremely great, but there has been the removal of a terrace, and the setbacks have been increased.
(5) There has been a reduction in the gross floor area. Some figures have been suggested but I do not think that there is evidence before the Court on which I could determine precisely what is now the floor space ratio, but there is no doubt that there has been a reduction in gross floor area.
(6) There is to be increased landscaping.
(7) The number of carparks have been reduced from 31 to 25. There has been an alteration to the carpark layout, although that alteration does not seem to be of any consequence as between the December plans and the April plans.
(8) There is now to be a community shop, achieved, it appears, by removing a bedroom of one of the units.
(9) There is also the deletion of unit 3, which will provide another view corridor.
8. That litany of changes is described in general terms. The question, however, is not whether there are many changes, but rather whether the development as proposed in the original development application as amended is so substantially different as disclosed in the April plans, that the April plans would convert the development application into a new development application. That statement of the law has been postulated many times. I refer to the judgment of Samuels J in Willoughby Municipal Council v Manchil [1974] 2 NSWLR 415 at 420.
9. Are the changes substantially different? I have looked at them cumulatively and I have looked at them overall. It is a question of degree. It is not a question of whether there is any difference at all, because clearly cl 55 contemplates differences, and the council is entitled to accept differences. The question is the substantial nature. Are the changes substantial looked at overall, and looked at cumulatively?
10. I have come to the conclusion that they are not. In my opinion the building has been reduced in size, and the footprint has changed, but looking at it overall what is proposed, in my opinion, is substantially the same as what was proposed by the original development application, as amended. That is not to say there are no differences, that is not to say that the differences are not significant, it is simply to apply the test which I have outlined.
11. It is also not to say that the council should not have an opportunity to consider the April plans. It would in my view be quite wrong for the council not to be afforded the opportunity of, firstly, readvertising the April plans, and secondly, considering the April plans afresh in the light of any submissions it might receive. It is important that those steps take place, and indeed, there was no dispute between the parties that that should happen.
12. Formally then, I order in respect of the two notices of motion as follows:
(1) In relation to the council’s notice of motion, I answer the question as follows:
- The changes contemplated by the plans dated 9 April 2001 do not convert the development application into a new development application.
(2) In relation to the applicant’s notice of motion I grant leave to the applicant to rely upon the amended plans.
13. I think that the proceedings should be stood over to a callover before the Registrar at such date so as to enable the council to consider the April plans and to take whatever steps it considers appropriate in connection with readvertising.
14. Do counsel have a date on which they would seek the matter to be relisted?
15. NEWPORT: I am just thinking of the time also to consider them. I think your Honour that the appropriate course perhaps is just to adjourn it for one month, then we would be in a position to know exactly where we are.
16. HER HONOUR: Do you have any objection to that Mr McEwen?
17. MCEWEN: Your Honour, the only thing that troubles me is the one month. We certainly accept the council is entitled to advertise. We would have assumed that the council would advertise for a period of 14 days - I think on reflection I have nothing I want to say about it.
18. HER HONOUR: I think a month is reasonable.
19. I stand the proceedings over to a callover before the Registrar at 9.00 am on 22 June 2001. The exhibits may be returned.
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