Dyldam Developments Pty Ltd v Holroyd City Council

[2001] NSWLEC 204

Land and Environment Court

of New South Wales

CITATION:	Dyldam Developments Pty Ltd v Holroyd City Council [2001] NSWLEC 204
PARTIES:	APPLICANT Dyldam Developments Pty Ltd RESPONDENT Holroyd City Council
FILE NUMBER(S):	10321 of 2001
CORAM:	Pearlman J
KEY ISSUES:	Practice and Procedure :- class 1 appeal - amended plans
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 97 Environmental Planning and Assessment Regulation 1994 cl 55 Land and Environment Court Rules 1996 pt 13 r 16(b1)
CASES CITED:	Ervin Mahrer and Partners v Strathfield Municipal Council [2001] NSWLEC 140; Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303
DATES OF HEARING:	26/07/2001
EX TEMPORE JUDGMENT DATE :	07/26/2001
LEGAL REPRESENTATIVES:	APPLICANT Mr B Abbas SOLICITORS Maclarens RESPONDENT Mr S Patterson SOLICITORS McKees

JUDGMENT:

IN THE LAND AND 10321 of 2001
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 26 July 2001

DYLDAM DEVELOPMENTS PTY LTD

Applicant

v

HOLROYD CITY COUNCIL

Respondent

JUDGMENT

1. The application before me today is by notice of motion seeking a direction that this class 1 appeal proceed and that it be heard on amended plans.

2. Those amended plans have been tendered as ex ‘B’. I have had the benefit of having the ex ‘B’ plans compared with the original plans in ex ‘A’. In particular, I have been taken through the amendments by Mr Patterson who appears for the council.

3. There are substantial changes between the development as proposed in the original plans and the development as proposed in the amended plans. Most prominent is the fact that instead of there being one single block of units there are now to be two buildings. There are changes in the number of units, in the number of garages, and in the number of balconies that are on the north-west side of the building. The balconies are significant because they overlook and have a potential impact upon two blocks of apartment buildings which are situated on the boundary of the proposed site. There is some re-configuration of the driveway, the swimming pool is relocated and there is a change in the setback from one of the boundaries which faces Parramatta Golf Course. Mr Patterson put it colloquially by saying that not one brick of what was proposed in the original plans would be the same as any brick in the amended plans if the building was developed according to the latter.

4. Mr Abbas, appearing for the applicant, put before the Court a number of concerns which underpin the applicant’s notice of motion. Principally those concerns arise out of the fact that the amendments were made to meet the council’s requirements and objections, arose from discussion with council officers and are intended to cut down bulk and scale. Further, the purpose of seeking that the appeal proceeds on the amended plans is to avoid the expense of a new development application.

5. I am sympathetic with those concerns but they do not override the question of whether the Court should in its discretion permit the matter to proceed on the amended plans. Part 13 r 16(b1) of the Land and Environment Court Rules 1996 provides that the applicant cannot proceed on amended plans without the council’s consent or with the leave of the Court. In this case, I think more fundamental is the nature of the change.

6. An appeal in class 1 of the Court’s jurisdiction is brought under s 97 of the Environmental Planning and Assessment Act 1979 which relevantly provides as follows:

97(1) An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant’s development application … may appeal to the Court …

What underpins the appeal is a development application. It is my view that the Court is not empowered to entertain amended plans which are so substantially different from the original plans that the development as proposed cannot be said to be substantially the same development as was the subject of the development application. I think the Court’s jurisdiction is limited to the development application that was before the council and in respect of which the council has refused consent or in respect of which there has been a deemed refusal of consent.

7. There have been decisions which are authority for the propositions I have made. I mention only the decision of Samuels J in the Administrative Law Division of the Supreme Court in Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303. Quite recently Bignold J delivered a decision in Ervin Mahrer and Partners v Strathfield Municipal Council [2001] NSWLEC 140 which calls into question the basis upon which Willoughby Municipal Council v Manchil was decided. His Honour’s conclusion is that cl 55 of the Environmental Planning and Assessment Regulation 1994 which allows an applicant to amend plans the basis of a development application, with the agreement of the consent authority, is very wide and allows any amendment.

8. Nonetheless 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.

9. If it was, nonetheless, a matter for the discretion of the Court I would take the same view. It is important that applicants respond to objections and try to produce a development that reduces impact and meets the concerns of the council. But, if that requires the production of an entirely new development proposal then, in my view, the Court is not empowered to entertain the appeal. Accordingly I dismiss the notice of motion.

[Counsel addressed on costs]

10. I accept that the applicant has been motivated by a desire to meet the concerns of the council and I think in that circumstance it is appropriate that I make no order as to costs.