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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWLEC 204
Decision Date: 07/26/2001

CaseChat Overview and Summary

Dyldam Developments Pty Ltd, the applicant, filed an application before the Land and Environment Court of New South Wales seeking a direction that a class 1 appeal proceed and be heard on amended plans. The respondent, Holroyd City Council, opposed the application. The applicant sought to proceed with the appeal on the amended plans to avoid the expense of a new development application. The amended plans proposed substantial changes, including a reconfiguration of the development, relocation of the swimming pool, and alterations to the number of units and garages. The applicant argued that the amendments were made to address the council's objections and reduce the impact of the development.

The primary legal issue before the court was whether it had the discretion to permit the class 1 appeal to proceed on the amended plans, which were substantially different from the original plans. The court considered whether the changes proposed in the amended plans constituted a new development application, which would fall outside the scope of the original development application. Pearlman J held that the court's jurisdiction was limited to the development application that was before the council and in respect of which the council had refused consent or there had been a deemed refusal of consent. The court referred to the relevant statutory provisions and case law, including Willoughby Municipal Council v Manchil Pty Ltd and Ervin Mahrer and Partners v Strathfield Municipal Council, to conclude that the amendments were so substantial that the amended plans constituted a new development application.

Pearlman J concluded that the court was not empowered to entertain the appeal on the amended plans, as the changes were substantial and the amended plans constituted a new development application. The court found that the applicant's desire to meet the council's concerns was commendable, but if it required the production of an entirely new development proposal, the court was not empowered to entertain the appeal. The court dismissed the notice of motion and made no order as to costs, considering the applicant's motivation to address the council's objections.

The court's decision highlights the importance of adhering to the original development application and the limitations on the court's jurisdiction in class 1 appeals. It underscores the need for applicants to respond to objections and reduce the impact of their developments, but also emphasizes that substantial changes may require a new development application. This case serves as a reminder to applicants to carefully consider the implications of substantial amendments to their development proposals and the potential need for a new application.

Orders