Elali v Campbelltown City Council

[2004] NSWLEC 554

Reported Decision: 135LGERA 85

Land and Environment Court

of New South Wales

CITATION:	Elali v Campbelltown City Council [2004] NSWLEC 554
PARTIES:	APPLICANT: Elali RESPONDENT: Campbelltown City Council
FILE NUMBER(S):	10818 of 2004
CORAM:	Bignold J
KEY ISSUES:	Development Application :- amendment of development proposal-whether Court has power to allow amendment
LEGISLATION CITED:	Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 39(2)
CASES CITED:	Dyldam Developments Pty Ltd v Holroyd City Council [2001] NSWLEC 204; Ervin Mahrer and Partners v Strathfield Council (No 2) (2001) 115 LGERA 259; Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303
DATES OF HEARING:	24/09/2004
DATE OF JUDGMENT:	09/30/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr J Johnson, Barrister SOLICITORS Woolf and Associates RESPONDENT: Mrs P Hudson, Solicitor SOLICITORS Marsdens

JUDGMENT:

16

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

30 September 2004

10818 of 2004 GHAZI ELALI v CAMPBELLTOWN CITY COUNCIL

JUDGMENT

:

1 The Applicant in a pending class 1 proceeding, being an appeal pursuant to the Environment Planning and Assessment Act 1979, s 97, (the EP&A Act) against the deemed refusal of a development application to develop land known as No 183 Airds Road, Leumeah for the purposes of serviced apartments and a convention centre, by Notice of Motion filed 16 September 2004 seeks an order approving the amendments of the proposed development as shown in a series of drawings specified in the Motion.

2 The Council opposes the Motion and submits that the amendments involve substantial differences to the original proposed development which render it a different or new development application, rather than an amended application.

3 Although the amendments which involve a considerable reduction in the scale of the proposed development reflect the Applicant’s positive response to the Council’s criticisms of the original proposal as reflected in the Council’s filed Statement of Issues, the end result in the Council’s submission is that the Applicant must lodge with the Council a new development application reflecting the amended proposal if it wishes to proceed with that proposal rather than the original proposal.

4 The only evidence tendered on the Motion was the development application plans depicting the original proposal and the amended plans accompanied by a written particulars describing the amendments and the nature of the changed development. Those written particulars are required by the Environmental Planning and Assessment Regulation 2000, cl 55(2) (the EP&A Regulation) to accompany any amendment of the development application which “results in a change to the proposed development”.

5 The Applicant’s claim for the Order sought in his Notice of Motion is exclusively founded upon the provisions of the EP&A Regulation, cl 55 which provide as follows:

55 What is the procedure for amending a development application?
(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.
(2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development.
(3) If the development application is for:
(a) development for which concurrence is required, as referred to in section 79B of the Act, or
(b) integrated development,
the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.

6 The Applicant, relying upon my decision in Ervin Mahrer and Partners v Strathfield Council (No 2) (2001) 115 LGERA 259, submits that (i) the amendments to the original development proposal fall within the ambit of the power conferred by the EP&A Regulation, cl 55; and (ii) this Court is empowered to exercise the function of the consent authority under cl 55 to agree to the amendments by virtue of the Land and Environment Court Act 1979, s 39(2) which provides as follows:

In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

7 In advancing its competing submission, the Council relies upon the later decision of Pearlman CJ in Dyldam Developments Pty Ltd v Holroyd City Council [2001] NSWLEC 204 where her Honour refers to my decision in Ervin Mahrer but decided not to follow it, preferring instead to apply an approach to the question which had been adopted by earlier decisions of the Court.

8 In the written particulars describing the changes to the nature of the proposed development by virtue of the proposed amendments prepared by the Applicant’s Architects (Blackwood Neal), the two principal changes to the proposal that are identified are—

(i) the increase from 15 m to 30 m in the building setback from Campbelltown Road, increasing the opportunity for landscaping at the front of the building and increasing the view corridor along Campbelltown Road to listed heritage buildings located further to the south of the development site; and
(ii) the reduction in the height of the proposal from 8 to 5 storeys.

9 The design changes to the proposal in consequence of those two principal changes are fully described in the particulars and include the following:

1. The overall height of the building is reduced by 3 storeys. The level 4 Penthouses stepping back from the level 3 suites to provide a step in the building on its southern façade of 2 metres.

2. A reduction of accommodation suites from 80 to 58 in total decreases the overall development.

3. The typical floor has an increase of suites from 13 to 15. The building proportions have become shorter and wider as opposed to its previous shape of long and narrow. With the increase in the building width we can still meet councils requirements for side setbacks from the boundary.

4. A reduction in area for the conference centre from 368m2 to 325m2. The carparking requirements decrease with less floor area provided.

5. Carparking requirements in accordance with DCP 52 is;

Conference area	1 space per 6.6 m2	325m2x6.6=	49 spaces
Serviced Apartments	1 space per unit	58 unitsx1=	58 spaces
Employee Parking	1 space per 2 employees	40x5=	20 spaces Total required 127 spaces


Total provided 138 spaces

10 These verbal particulars of the proposed amendments and the nature of the changed development are confirmed by a comparison of the original and amended development application plans which depict in precise detail the original development proposal and the amended development proposal. The visual comparison of the two sets of plans enables a full appreciation to be gained of the differences between the original and the amended development proposals. As earlier noted, the essential differences reflect a substantial reduction in the scale of the proposed development without otherwise affecting its essential characteristics as a convention centre and serviced apartments complex with basement carparking accessed via Airds Road.

11 The competing submissions, as I have noted, rely upon different authorities in this Court where it is inescapable that the two relevant decisions are inconsistent with each other. No serious attempt was made in the course of an abbreviated hearing to resolve the obvious inconsistency between the decisions in Ervin Mahrer and Dyldam Developments, the competing submissions simply relying upon the competing decisions.

12 In Ervin Mahrer I held at 277 that the fundamental task required in that case was for the Court to determine the proper construction of the EP&A Regulation, cl 55, having noted at 270 that that task had not been previously undertaken in any known decided case in relation to cl 55 or any of its legislative predecessors dating back to the commencement in 1980 of the original EP&A Regulation (which for the first time in town planning legislation had conferred an express power to amend or vary a development application prior to its determination).

13 It was in these circumstances that I approached the task (commencing at 278) by first construing cl 55 then revisiting the question whether the considerable course of authority in the decided cases should carry any influence or impact upon the proper construction of the clause, before concluding its proper meaning.

14 At 279 I reached the following prima facie construction:

Putting together these words, as expounded, results in the following obvious interpretation of the amendment power created by cl 55.

A development application may be changed or altered resulting in an alteration, variation (or) modification to the proposed development.

15 Having so concluded, I immediately said:

Is there anything in the context or the apparent legislative purpose of the EP&A Act or Regulation which would suggest a displacement or modification of the plain meaning thus far given to the language of cl 55? In my judgment, the answer to this question is no.

16 After considering at 279/280 a number of relevant provisions of the EP&A Act, and the EP&A Regulation, I returned to the question that I had earlier posed concerning the potential impact upon the proper construction of cl 55 of the earlier cases when I said at 280/283:

[121] Is there anything in the course of authority in the decided cases that would suggest the displacement or modification of the plain meaning of cl 55? Here I must encounter two separate features of the decided cases. First, there are the cases which assumed an implied, but undefined, power of amendment of a development application, the most notable of which are Manchil (most particularly because of its frequent citation in decisions of this Court) and Shanahan. Secondly, there are the numerous decisions of this Court (eg Toadolla; Westport Marina Developments; Songkal v Warringah Council (2000) 111 LGERA 71; York Developments Pty Ltd v Liverpool City Council (2000) 109 LGERA 305; Khouri v Burwood Council (2001) 115 LGERA 1) which have adopted and applied Manchil without any express assimilation of (i) the assumed implied, but undefined, power of amendment; with (ii) the statutory power of amendment created by cl 55 of the Regulation (and its predecessor counterparts tracing back to the commencement in 1980 of the EP&A Act) and without expressly adverting to any need to properly construe the statutory power created by cl 55 (and its legislative predecessors).

[122] In Manchil, Samuels J acknowledged the possibility of an amendment to plans (being) so significant as to convert the original concept into something substantially different (at 420; 308) and in Shanahan Nader J regarded Manchil as providing significant guidance before concluding (at 55; 263) that despite the wide powers conferred upon the Planning Act 1979 (NT)), the content of an application may be so changed on appeal as to deprive it of its character as the subject of appeal and render any hearing or determination upon it as ultra vires the committee.

[123] Later (at 57; 265), Nader J restated his earlier conclusion, but in the following different terms:

Having decided that, if the changes to the original plans impliedly effected were such that the original application lost its identity and became in reality another application, it was not open to the committee to continue to hear or to determine the appeal on the basis of the new plans, it is now necessary to decide whether the new plans did effect such a radical change.
[124] However, both formulations of Nader J's conclusions need to be understood in the light of the following passage (at 59; 267) appearing at the end of his judgment where his Honour draws a number of legal inferences or implications
from the existence in the Planning Act of special provisions concerning prescribed development applications :
I regard this last-mentioned provision as indicating, by inference, that, where a development application was not a prescribed development application, the consent authority had power, not merely to allow amendment, but to allow extensive amendment. By further inference it can be seen that the parliament did not consider extensive amendment alone as depriving an application of its identity. Remembering that by s 134 of the Planning Act, the committee was vested with all the powers, authorities, duties, functions and discretions of the consent authority, I see no reason why the fact of extensive amendment alone should deprive the subject of an appeal of its identity.
[125] When his Honour's earlier conclusions are read in the light of this ultimate passage in his judgment, I think it is legitimate to deduce the following proposition -- a planning appeals body in allowing amendments, may not allow radical changes (exceeding extensive amendment ) to be made to development application causing it to lose its original identity and thereby become another application which is not the subject of the planning appeal.

[126] In my respectful opinion, there is nothing in the judgments in Manchil or Shanahan which would necessitate or justify a displacement or modification of the plain meaning of the power created by cl 55 of the Regulation. In truth, neither case purports to identify the precise terms of any relevant implied amendment power that was assumed to exist or to construe the scope and ambit of any such amendment power. Rather, both decisions in recognising the possibility that some amendments to development applications will be of such a nature as to involve not an amended, but a fresh development application do so entirely from the perspective of recognising the limitations on the statutory function of an appellate planning body to hear and dispose of an appeal brought against the determination of a consent authority.

[127] This of course is a very relevant, if not crucial, perspective for the legitimate application of the LEC Act, s 39(2) which I have already considered in answering the first question posed, but it is not relevant to the present question involving the proper construction of cl 55 of the Regulation.

[128] Accordingly, I do not see any legitimacy in quest of the proper construction of cl 55 to superimpose upon the word change appearing in cl 55 of the Regulation the qualification of not being a radical change (Shanahan at 58; 266) or to superimpose upon the adopted meaning of the word change, namely to make different the qualification of not being substantially different (Manchil at 420; 308).

[129] In the light of my conclusions that the decisions in Manchil and Shanahan do not require or justify any modification of the plain meaning that I have attributed, by process of construction, to the scope and extent of the power created by cl 55, it remains for me to consider whether that tentative construction is impacted by the decisions of this Court which have applied Manchil and or Shanahan. As I have already noted, Manchil has been frequently cited and applied in judgments of this Court which were concerned with the power of this Court in hearing and disposing of a development appeal to allow an applicant to amend the proposed development or to rely on amended plans. In applying Manchil, the cases frequently deduce the principle that the limits of the power of amendment will be exceeded if the changes to the proposed development are so significant as to convert the original development concept into something substantially different.

[130] However, as I have attempted to show, this deduced or derived principle, is in truth, an emanation from, or a consequence of, the nature of the Court's jurisdiction to hear and determine a development appeal, rather than representing an interpretation of the power of amendment created by cl 55 of the Regulation.

[131] For those reasons, I do not think, with respect, that the decisions of this Court that have applied Manchil provide any assistance to the task of properly construing the statutory power of amendment created by cl 55 of the Regulation.

[132] I should, however, note that in Songkal, Sheahan J (at 81) appears to have been prepared to extend the test laid down in Manchil and the cases that have followed it to the council's opinion in that case that amended plans lodged with it were so substantially different from the original development proposal as to amount to a fresh application. However, in so concluding, his Honour did not purport to consider the statutory power of amendment or to construe that statutory power. For the reasons I have previously given, I would respectfully not see the decision in Manchil as assisting in the task of the statutory construction of cl 55 of the Regulation.

[133] Another case which gave consideration to the scope and extent of the power to amend a development application in a context not involving the functions of an appellate planning body was Independent Holdings. As I have earlier noted, in that case King CJ of the Supreme Court of South Australia implied the power to amend or permit amendment of a development application for the following reasons stated (at 326; 346):

In the absence of an express provision authorising amendment, it is necessary to consider whether there is any implied authority to amend or permit amendment. There does not appear to be any reason why the primary planning authority, be it Council or Commission in the particular case, should not have the power to permit amendment of the plans which form the basis of the application, before it makes its final decision. There is no provision in the City of Adelaide Development Control Act 1976 (SA) which forbids such a course. There are no third party rights under the City of Adelaide Development Control Act which could be adversely affected. It is manifestly convenient that such a power should exist. It is almost inevitable that when proposals for complex developments are examined by the planning authority's experts, some need for modification of plans will arise. It would be absurd to require a developer to lodge a new application notwithstanding that the desired modification might be of minor significance. I see no reason to interpret the City of Adelaide Development Control Act in so rigid a manner.
[134] However, because of the existence of a provision of the City of Adelaide Development Control Act which determined that the applicable law was that in force upon the date of the application for approval , King CJ considered that some limitation on the scope of permissible amendments was required so that amendment cannot be made the means of substituting for the original application what is in substance a new application (at 326; 346).

[135] The Chief Justice expounded the necessary limitations by holding that earlier Full Court decisions in City of Marion v Becker and Hancock Development Corporation Pty Ltd v City of Tea Tree Gully, (albeit dealing with the nature of the planning appeal process and not the power of the primary planning authority to permit amendment) had made a valid distinction between permissible and impermissible amendments which the Chief Justice (at 326-327; 347) formulated as follows:

Amendments are permissible unless the amendments are so extensive as to change the character of the development so that it is not, in essence, the same development as that for which approval was originally sought.
[136] In the result, the Chief Justice found (at 327; 347) that the amendments submitted in the applicant's amended plans were extensive but he continued:

They did not however in my opinion, alter the essential character of the proposed development.
[137] I would respectfully distinguish Independent Holdings from the present case for the following reasons:
(i) It involved an assumption of an implied power to amend or to permit amendment, albeit otherwise undefined, whereas the present case involves an express statutory amendment power;
(ii) It did not involve the construction of any statutory or otherwise defined amendment power whereas the present case requires such a construction of a statutory power;
(iii) It involved an implied limitation on the assumed implied power to amend, to ensure that another important provision of the legislation (defining the applicable law) was not ignored or defeated by the exercise of the amendment power, whereas the present case does not involve any features that would support the implication of any such limitation. On the contrary, the statutory power of amendment has always been part of the detailed provisions of the EP&A Act. Its function in that complex is clearly facultative which justifies a liberal interpretation of the power. The fact that the power is conditional in that the agreement of the consent authority is required to any amendment means that there is no risk of abuse of power.
[138] For all these reasons, I do not think that the decision in Independent Holdings requires or justifies any departure from or modification to, the construction of cl 55 of the Regulation that I have adopted.

[139] For all the foregoing reasons, I would now formally adopt my earlier stated construction of cl 55 and hold that 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.

17 If the construction of cl 55 that I adopted in Ervin Mahrer were applied to the undisputed facts in the present case concerning the nature of the proposed development as originally proposed and the nature of the proposed changed development with the differences between the two revealed by the process of simple comparison of the two sets of plans leading to the conclusion I have earlier stated (a development substantially reduced in scale but otherwise having essentially the same development characteristics), there could only be one answer to the question of the application of cl 55, namely that the proposed amendments fall within the ambit of the power of amendment or variation conferred by cl 55. If such ultimate conclusion were to be reached, there would be no need either to invoke or to negate adjectival epithets to describe the comparison between the original and the amended development proposal (such as for example “substantially or radically different” or “essentially the same character”).

18 However, the Council’s submission, which does invoke the adjectival epithet, is founded upon the decision in Dyldam Development where Pealman CJ in refusing leave for the applicant to rely upon amended plans reasoned to that conclusion in the following passages at pars 5 to 9 inclusive:

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.

19 I am constrained to make the following observations in respect of the reasoning in Dyldam Developments (which, with the greatest respect, I do not find to be either compelling or as providing the solution to the disputed question in this case)—

(i) It appears that her Honour was concerned with the power conferred upon the Court by Part 13 r 16(b1) of the Court’s Rules and not with the amendment power conferred by the EP&A Regulation cl 55 .
The present case, like Ervin Mahrer , does not involve Part 13 r 16(b1) because the class 1 proceedings have not been fixed for hearing: see Ervin Mahrer at 263/264.
(ii) The proposition advanced by her Honour at par 6 “ 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 ” (my emphasis) and for which her Honour claims the supporting authority of the decided cases, including that of Samuels J (as he then was) in Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303, is in my respectful opinion not supported by that authority. This is clearly demonstrated by the following extract from the judgment of Samuels J in Manchil at 308:
Hence, to put it succinctly, the Board can do what the council could have done. But it can exercise its powers so conferred only for the purposes of hearing and determining an appeal. It has no jurisdiction to entertain an original application. It can consider only the application which was before the council. But this does not mean that it is confined to precisely the same material which was before the council. In the nature of things, a board will ordinarily have before it material which the council never considered. A council plainly has power to permit amendment of a plan initially submitted under cl 31(1)(b). And the Board has the same power.

It follows that the submission made cannot succeed unless the amendment to the plans made in November 1973 converted what was then before the Board into a fresh application. I do not think it did. It was an amendment and no more. In the present case, after the original plan had gone in with the development application in April 1973 (sic), amended plans were forwarded to the plaintiff in June 1971. But the plaintiff does not suggest that these constituted a fresh application. Mr Bingham’s affidavit in support of the summons identifies the development application in suit as that of 6th April, 1971, although the plaintiff considered it in the light of the amended plans submitted in June. There may, of course, be occasions when an amendment to plans are so significant as to convert the original concept into something substantially different. But having considered the alterations made I do not consider that this is such a case.

(iii) Her Honour, in citing the then very recent decision in Ervin Mahrer considered it “ to call into question the basis upon which Manchil was decided ”. With the greatest respect, Ervin Mahrer did not call into question the basis upon which Manchil was decided as is demonstrated by the following passages at 273/274:
76. Manchil is perhaps the most often cited authority found in decisions of this Court concerning the Court’s powers to allow an applicant to a development appeal to rely upon amended plans. The earliest reported case in this Court is Moore v Randwick Municipal Council (1980) 46 LGRA 244 where Cripps J (as he then was) said at 246:
In the proceedings before this Court the applicant sought to tender amended plans. This tender was opposed by Mr McKenzie, appearing for the council, on the ground that the plan ought be the subject of a fresh application to council. I considered the plans and admitted them being of the view that they did not differ so greatly from the plans originally submitted as to amount to a fresh application—see Willoughby Municipal Council v Manchil Pty Ltd [1974] 2 NSWLR 415; 29 LGRA 303.
77. Recently in Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451 the Chief Judge at 459 cited Manchil as authority for the proposition that the Court has no jurisdiction to hear and determine an appeal if an amendment converts the development application into a fresh application.
78. The principle deduced or derived from the decision in Manchil and which has been consistently and often applied by this Court, I think can be aptly formulated as follows:
Whereas a planning appellate body has no jurisdiction to entertain an original development application, it may in determining an appeal, exercise the power vested in the consent authority to allow an amendment to be made to the development application (that was the subject of that authority’s determination and which enlivened the appeal) provided that the amendment does not convert the original concept into something substantially different.
It would appear, in my respectful opinion, that the Chief Judge’s observation (which was made in an extempore judgment) may have been derived from the holding in Ervin Mahrer that the decision in Manchil (and other cases which have applied it, including several earlier decisions in this Court) did not impact upon the proper construction of cl 55 for the reasons contained in the extended passage that I have earlier recited. But as I emphasised in Ervin Mahrer at 281, the question of the proper construction of cl 55 is an entirely different question from the question of the scope of that power being available to the Court by virtue of the LEC Act , s 39(2) . In this respect, it is obvious that the proper construction of the EP&A Regulation , cl 55 which confers a power of amendment or variation upon an applicant for development consent and a power upon the consent authority to agree or disagree with that amendment or variation cannot be made to depend upon the availability of that power to this Court by virtue of the LEC Act , s 39(2) . It is only after the true meaning of the EP&A Regulation , cl 55 has been established by the conventional process of statutory interpretation that any question of its availability to this Court in the hearing and disposing of a development appeal by virtue of the LEC Act , s 39(2) may arise.
I would emphasise that it is the true meaning of the EP&A Regulation , cl 55 uninfluenced by the operation of the LEC Act , s 39(2) that is to be established by the process of statutory interpretation and the power conferred by the EP&A Regulation , cl 55 upon a consent authority is precisely the same power that is conferred upon this Court by virtue of the application in a given case of the LEC Act , s 39(2) ; and
(iv) Her Honour does not question the construction of the EP&A Regulation , cl 55 that was adopted in Ervin Mahrer .

20 For all the foregoing reasons, I would reject the Council’s submission founded on the decision in Dyldam Developments and hold, consistently with what I held in Ervin Mahrer concerning (i) the proper meaning of the EP&A Regulation, cl 55; and (ii) the availability of that power to this Court by virtue of the LEC Act, s 39(2), that the proposed amendments to the original development proposal fall within the ambit of (i) the power conferred by cl 55 upon an applicant to amend or vary the development application resulting in changes to the proposed development; and (ii) the power conferred by cl 55 upon a consent authority to agree or disagree with the amendment or variation.

21 In so concluding, I should note that despite there being no direct challenge to the correctness of Ervin Mahrer before applying it to the facts of this case, I have carefully reviewed it.

22 Since the Council’s opposition to the Applicant’s Notice of Motion was founded exclusively upon the submission that there was no power available to the Court to approve of the amendment, there has been no consideration given to discretionary factors which may be relevant to the Court exercising the power that I have now held to be available. The nature and scope of potentially relevant discretionary considerations were discussed in Ervin Mahrer at 284 to 286 (incl).

23 In view of the fact that the present proceedings involve a recently commenced appeal against the Council’s deemed refusal and soon after the Council had filed its Statement of Issues, in the proceedings the Applicant has moved the Court for approval to amend the proposed development in an obvious attempt to overcome a number of the Council’s criticisms of the original development proposal, it appears to me to be appropriate to publish my reasons for concluding that the proposed amendments fall within the ambit of the EP&A Regulation, cl 55 and within the ambit of this Court’s power made available by virtue of the LEC Act, s 39(2) to agree to the amendments pursuant to cl 55, but withhold making final orders to provide the Council with the opportunity to raise any discretionary matters concerning the exercise of the power that has now been successfully invoked by the Applicant and also (and perhaps more importantly) with the opportunity to agree to the amendments and thereafter to determine for itself the amended development application.

24 Accordingly, I hold that the Court has the power to grant the relief claimed by the Applicant in his Notice of Motion filed on 16 September 2004 but I stand over until 14 October 2004 the question whether that power should be exercised in favour of the Applicant, and if so, upon what terms (if any). Liberty is granted to restore on two days’ notice.