Ervin Mahrer and Partners v Strathfield Council (No 2)

Reported Decision: 115 LGERA 259

Land and Environment Court

of New South Wales

CITATION: Ervin Mahrer and Partners v Strathfield Municipal Council [No 2] [2001] NSWLEC 140

PARTIES:
APPLICANT:
Ervin Mahrer and Partners
RESPONDENT:
Strathfield Municipal Council

FILE NUMBER(S): 10088 of 2000

CORAM: Bignold J

KEY ISSUES: :- Whether Applicant on a development appeal should be granted leave to rely upon amended plans

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000, cl 55
Land and Environment Court Rules 1996, pt 13 r 16(b1)

CASES CITED: Addicoat v Fox (No 2) (1978) 37 LGRA 411;
Bankstown Municipal Council v Estates Property Investment Co Pty Ltd (1970) 21 LGRA 433;
Basement Pty Ltd v Baulkham Hills Shire Council (2001) NSWLEC 95;
Carr v Minister for Land and Water Conservation (2000) 109 LGERA 175;
City of Marion v Becker (1973) 6 SASR13;
Gibson v Mosman Municipal Council (2001) NSWLEC 134;
Hancock Development Corporation Pty Ltd v City of Tea Tree Gully (1986) 42 SASR 584;
Independent Holdings Ltd v Adelaide City Planning Commission (1994) 63 SASR 318;
Khouri v Burwood Council (2001) NSWLEC 124;
McDougall v Warringah Shire Council (1993) 80 LGERA 151;
Mison v Randwick City Council (1991) 23 NSWLR 734;
Moore v Randwick Municipal Council (1980) 46 LGRA 244;
Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630;
North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97 LGERA 433;
Parkes Developments Pty Ltd v Cambridge Credit Corp Ltd (1974) 33 LGRA 196;
Parramatta City Council v Nadroj Pty Ltd (1968) 17 LGRA 81;
R v Shanahan & Ors Ex Parte Northern Territory Planning Authority (1984) 54 LGRA 255;
Rancast Pty Ltd v Leichhardt Council (1995) 89LGERA 139;
Randwick Municipal Council v Janlz Constructions Pty Ltd (1976) 35 LGRA 70;
Ross Karp Pty Ltd v Randwick City Council (1999) 106LGERA 397;
Ross v Town and Country Planning Appeal Board (1976 2 NZLR 206;
Songkal v Warringah Council (2000) 111 LGERA 71;
Sydney City Council v Ilenace Pty Ltd (1984) 3 NSWLR 414;
Toadolla Corp Pty Ltd v Dumaresq Shire Council (1992) NSWLEC 129;
Tong Joo Pty Ltd v Mosman Council (2001) NSWLEC 87;
Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451;
Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303;
York Developments Pty Ltd v Liverpool City Council (2000) NSWLEC 174

DATES OF HEARING: 8 March 2001

DATE OF JUDGMENT:
06/29/2001

LEGAL REPRESENTATIVES:

APPLICANT:
Mr C Ireland, Solicitor
SOLICITORS
Blake Dawson Waldron
RESPONDENT:
Mr D Baird, Solicitor
SOLICITORS
Price Waterhouse Coopers

JUDGMENT:

IN THE LAND AND

Matter No. 10088 of 2000

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

29 June 2001

ERVIN MAHRER AND PARTNERS

Applicant

STRATHFIELD MUNICIPAL COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. The Court has heard concurrently two opposing Motions in pending Class 1 proceedings involving an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) against the Council’s deemed refusal of the Applicant’s development application to carry out a large scale residential and commercial development on an agglomerated development site comprising premises known as Nos 55 - 67, 71 - 77 Parramatta Road and Nos 14- 24 Powell Street, Homebush.

2. Those proceedings were commenced on 3 February 2000. The hearing of the proceedings was fixed for 12 - 19 July 2000. However, these hearing dates were vacated on 12 July 2000 in the circumstances outlined in my earlier judgment delivered in the proceedings (as reported in (2000) 111 LGRA 308) to which reference may conveniently be made for an understanding of the litigation history up to that point of time (which history will presently need to be updated for the purposes of adjudicating upon the present Motions). One fact in that earlier history that may be particularly noted here is that shortly before the fixed hearing dates, the Applicant served on the Council a set of revised plans depicting numerous and potentially significant changes to the proposed development as it had been originally depicted. These revised plans are not the same as the “amended plans” that are referred to in the competing Motions.

3. The two opposing Motions are as follows:
(i.) The Applicant’s Motion, filed 8 February 2001 seeking leave of the Court for the Applicant to rely upon amended plans (Nos SK-01B to SK-14B dated 5 December 2000 (the amended plans) presumably in substitution for the original plans that had been lodged with the development application (DA 9900/139 “the original plans”) the Council’s deemed refusal of which had enlivened the present proceedings; and
(ii.) The Council’s Motion filed 13 February 2001, seeking a declaration that the development depicted in the amended plans is “not substantially the same development” as the development depicted in the original plans and a consequent declaration that the Court has “no jurisdiction” to grant the leave as sought in the Applicant’s Motion.

4. The competing Motions will, in my judgment, be resolved by my adjudication on each of the following questions:
(i.) whether the Court has the power to grant leave for the Applicant to amend its development application so that it may rely, at the hearing, upon the amended plans;
(ii.) whether the amended plans constitute an amendment of the development application in the sense that the development depicted in the amended plans is a change (by way of an amendment or a variation) to the development that is depicted in the original plans; and
(iii.) whether (if questions (i) and (ii) be each answered affirmatively) the Court should, in the exercise of its discretion, grant leave (either unconditionally or upon terms) for the Applicant to rely at the hearing upon the amended plans.

5. In concluding that the adjudication in respect of the foregoing three questions will resolve the issues raised by both Motions I am acutely conscious of the fact that my formulation of the questions does not, in terms or in substance, adopt or reflect the test or criterion stated in the Council’s Motion, namely “whether the development depicted by the amended plans is substantially the same development as that depicted by the original plans”. The reason why I have, at least momentarily, eschewed the language employed in the Council’s Motion (which language I readily acknowledge is frequently encountered in a long line of decided cases which I shall later need to review) is founded upon the fact that the sole legal foundation for the Applicant’s Motion, namely the statutory power for amending a development application that is provided by the Environmental Planning and Assessment Regulation 2000, cl 55 (the Regulation) does not itself employ the language enunciated in the Council’s Motion. Rather, cl 55 employs the language of “change” (to the proposed development) effected by way of “amendment or variation” (to the development application).

6. However, having explained why I have formulated the questions in the manner stated, I also acknowledge the possibility that the meaning and effect of the statutory language employed by cl 55 of the Regulation may ultimately be held to reflect or approximate the criterion generally articulated in the decided cases (which cases provide the sole foundation for the Council’s Motion). However, even if this possibility is ultimately realised, it remains the case that my adjudication on the three questions as I have formulated them, will still resolve both Motions.

7. Before proceeding to answer the three questions I would firstly make a few observations concerning the Applicant’s Motion and then state my relevant factual findings.

8. Firstly, it is to be noted that the Applicant’s Motion seeks the Court’s leave “pursuant to the Rules of Court Pt 13 r 16(b1) or otherwise”. The reference to “otherwise”, in my judgment, encompasses all the relevant powers conferred by the Rules (eg Pt 1 r 6) or by the Land and Environment Court Act 1979 (LEC Act) eg s 38(4).

9. Part 13 r 16(b1) (which came into force on 1 September 2000) provides as follows:

……….

Where proceedings have been fixed for hearing, the following requirements apply—

(b1) except with the consent of the respondent, or by leave of the Court, the applicant at the hearing shall not be entitled to rely upon any amended plans of the development proposal which the applicant initiates.

10. According to the strict terms of the Rules, Pt 13 r16(b1) does not apply at this particular point of time to the present proceedings because they have not “been fixed for hearing”.

11. Interestingly, the Applicant’s argument also suggested that the Rule did not apply to the present case by submitting that properly construed, the Rule operated “at the hearing” (and thus the Rule was implicitly concerned with “last minute” amendments).

12. I would respectfully reject the Applicant’s narrow construction of the Rule. The expression “at the hearing” does not, in my judgment, impose a temporal constraint upon the operation of the Rule as to when the consent of the respondent or the leave of the Court may be granted. Rather, it imposes a substantive constraint upon an applicant by declaring that he or she is not entitled to rely upon amended plans (initiated by the applicant) at the hearing, except with the necessary consent or leave (which may obviously be granted, either before or at the hearing).

13. Nonetheless, for the reason that I have given, the Rule does not apply to the present case, because the proceeding has not been fixed for hearing (following the vacation of the hearing dates that had been fixed for last July).

14. However, I do accept the Applicant’s submission that the Rule, in any event, does not confer upon the Court, any independent power to allow amendments to be made to a development application.

15. In Tong Joo Pty Ltd v Mosman Council (2001) NSWLEC 87, (decided after the hearing of the competing Motions) I held at par 13 that the Rule—

does not confer any independent power to amend a development application which is the subject of pending proceedings in the Court. Rather, it operates in respect of whatever powers of amendment are conferred by the Environmental Planning and Assessment Act 1979 and the Regulation.

having earlier noted at par 10 that “the EP&A Act and its Regulation made thereunder clearly recognise the possibility of a development application being amended or varied before it has been determined” and in particular, having noted that cl 55 of the Regulation provided an express power of amendment.

16. The second matter to note concerning the Applicant’s Motion is that the leave sought does not in terms, indicate that the Applicant intends to substitute the “amended plans” for the “original plans”. During the course of argument, when pressed by the Council to unequivocally elect between the two sets of plans, the Applicant’s response was that the time for it to make its election must await the outcome of the present Motions. This response is entirely reasonable because the outcome of the competing Motions might be that the Applicant is held not to be entitled to rely upon the amended plans, in which event, no question of election would even arise. To be forced to elect before the outcome of the Motions is known would be plainly unfair to the Applicant.

17. Despite this entirely reasonable forensic response by the Applicant, I do not understand its position to be one where it would seek to pursue in the present proceedings both the original and the amended plans. In any event, such an approach, in my opinion, would not conceivably be sanctioned by the Court because the issue raised by a development appeal is whether or not development consent should be granted to a development application which relates to a development proposal and not to alternative development proposals.

18. Accordingly, if the result in the competing Motions is that the Applicant obtains leave to rely upon the amended plans, a term of that leave would be to require a clear election to be made by the Applicant as to which one of the two sets of plans it is, that it seeks the grant of development consent from the Court.

B. THE RELEVANT FACTS

19. Following delivery of my earlier judgment in the proceedings on 30 November 2000, the Applicant by letter dated 18 December 2000 submitted to the Council a set of “architectural drawings for your comments”. The letters stated: “These drawings have been amended to reflect the issues previously raised by Council”.

20. The letter contained the following description of the amendments to the drawings:
· Buildings 3 + 5 have been reduced in height and the floor plans redesigned.
· Building 4 has been increased in height and the floor plans redesigned.
· Buildings 1 + 2 have remained the same.
· Carparking has been changed as shown.
· Landscaped areas have been maintained on structure above the carparks with soil depths adequate to maintain trees and shrubs. Roof gardens and terraces have also been provided to some of the buildings.
· The total landscaped area amounts to about 3700 m2. Landscape plans will be provided at a later date.

21. Following lodgment of these amended plans, the Applicant’s Town Planning Consultant, Mr James Nangle was meetings with the Council’s servants seeking to ascertain whether the amended plans were acceptable to the Council and whether the Council was prepared to grant development to the amended plans.

22. Mr Nangle was informed that it was a matter of concern that the amended plans did not comply with the Council’s Development Control Plan 20.

23. On 29 January 2001, the Council’s Solicitors wrote to the Applicant’s Solicitors seeking advice as to whether the amended plans lodged were intended to amend the development application or “form part of a new development application”.

24. The Applicant’s Solicitors responded by letter dated 30 January 2001 advising that the amended plans had been provided to the Council “in a bona fide effort to resolve the planning issues the Council has previously raised”.

25. On 7 February 2001, the Council’s Solicitors again wrote to the Applicant’s Solicitors advising that the Council did not consider that the amended plans adequately addressed the planning issues raised by the Council and that they were considered “unacceptable”.

26. The Council’s Solicitors emphatically requested the Applicant “clearly to elect as to which plans it intends to rely upon in the proceedings” and advised that should the Applicant elect to proceed on the amended plans, the Council did not consent to the amendment.

27. Finally, the Council’s Solicitors raised “the possibility” that the amended plans “may constitute a different development to that which originally constituted the appeal”.

28. By letter dated 8 February 2001, the Applicant’s Solicitors replied to the Council’s Solicitors concluding that “Our client now has no option but to formally seek the leave of the Court to rely upon the amended plans”.

29. The letter enclosed a full set of the amended plans together with the written schedule specifying the changes to the proposed development as required by cl 55(2) of the Regulation. A copy of that written schedule is annexed hereto and marked “A”.

30. Soon thereafter, the competing Motions were filed in the proceedings.

31. In support of the competing Motions, the parties tendered the original plans and the amended plans and they each filed multiple affidavits deposed to by experts retained by the parties (being town planners, architects, landscape architects, traffic engineers and a heritage architect). The parties mutually agreed that the Court would simply receive into evidence the multiple affidavits without any of the deponents being cross-examined.

32. Generally speaking, the experts on each side express competing opinions concerning the effect and the significance of the changes made to the proposed development by the amended plans, with the Applicant’s experts generally opining that the proposed development depicted in the amended plans was “not substantially different” from the proposal depicted in the original plans and the Council’s experts opining that the proposal depicted by the amended plans was “significantly” or “substantially” different or “different in substance” from the proposal depicted by the original plans.

33. It is obvious from the contents of the affidavits that the parties’ experts have been asked to consider the amended plans in their relation to the original plans in terms of verbal criteria that may be thought to be the relevant legal standard by reference to which such comparisons between the original proposal and the amended proposal are to be made.

34. Since the changes to the proposed development depicted by the amended plans have been verbally described in the Schedule (Annexure “A” hereto) prepared in conformity to cl 55(2) of the Regulation, I do not think it necessary for me to add anything to that verbal description. What is therein verbally described is fully depicted by the amended plans and is fully appreciated by a comparison of the proposal depicted in the original plans and in the amended plans.

35. There can be no doubt, and I so find, that the amended plans involve numerous and extensive changes to the proposed development.

36. Notwithstanding those numerous and extensive changes, I find that they have not changed the essential character of the proposed development as a large scale residential development with some smaller scale commercial development and associated underground carparking accommodation contained in an overall development of the development site comprising five separate buildings.

37. I have so concluded principally upon the basis of my own impressionistic evaluation of the comparison between the original plans and the amended plans, without having derived much assistance from the competing opinions on the ultimate issue that were expressed in the multiple affidavits of the parties’ experts, who by the parties’ mutual consent were not called or cross-examined. Hence these competing expert opinions remained in counterpoise without any available means for any meaningful preference of any one opinion over the competing opinion.

C. WHETHER THE COURT HAS THE POWER TO GRANT LEAVE FOR THE APPLICANT TO AMEND ITS DEVELOPMENT APPLICATION SO THAT IT MAY RELY, AT THE HEARING, UPON THE AMENDED PLANS

38. The Applicant’s argument identified two discrete sources of an amendment power, namely:
(i.) cl 55 of the Regulation (mediated via the LEC Act, s 39(2)); and
(ii.) the LEC Act, s 68(1).

39. No other source of power was suggested in the course of argument and I am satisfied that no other source is presently available. In so concluding, I would emphatically distinguish the question under present discussion from a similar, but separate question, namely the extent to which the exercise of the power of a consent authority (or on appeal, this Court) to grant development consent to a development application subject to conditions (vide the EP&A Act, s 80(1)(a)) , may have the effect of amending or varying or changing the approved development, from that for which development consent was sought in the development application.

40. The distinction between these two questions was comprehensively considered in the judgment of Brooking J in the Supreme Court of Victoria in Addicoat v Fox (No 2) (1978) 37 LGRA 411 where his Honour was chiefly concerned with the extent of the power to grant conditional development consent having noted at 426 that he “did not find it necessary to consider the general question of the extent to which, if at all, an applicant may vary his application by lodging with the responsible authority of a further document or documents after the lodgment of the written application for a permit…..”

41. Likewise, in the earlier decision of the NSW Court of Appeal in Parkes Developments Pty Ltd v Cambridge Credit Corp Ltd (1974) 33 LGRA 196 that Court also had given some consideration to the extent to which the power to grant a conditional development consent (under town planning laws in force prior to the enactment of the EP&A Act) may result in variations or amendments being made to the proposed development as it had been propounded in the development application. Speaking of such conditions, Hope JA said at 204:

These conditions may deal with many matters, but undoubtedly they may deal with the site, size, shape, design and other characteristics of a proposed building for the erection of which approval is sought. In practice, conditions dealing with these matters may specify with some precision the variations of the original plans which are to be incorporated in the approved development, or they may require revised plans or further plans to be submitted complying with the conditions and postpone final consent until these plans have been approved by the council, or by some officer, such as the town planner, as its delegate.

42. Similarly, the decisions of the Full Court of the South Australian Supreme Court in City of Marion v Becker (1973) 6 SASR 13 and Hancock Development Corporation Pty Ltd v City of Tea Tree Gully (1986) 42 SASR 584 considered the limitations on the power of the Planning Appeal Board under the then planning legislation to permit amendments to development applications under appeal.

43. Again, more recently, the Chief Judge of this Court in Carr v Minister for Land and Water Conservation (2000) 109 LGERA 175 has considered the scope and extent of a consent authority’s power under the EP&A Act to grant conditional development consent to a development application by applying the principle enunciated by Priestley JA in Mison v Randwick City Council (1991) 23 NSWLR 734 and holding at 187:

It is not open to a consent authority to grant consent upon conditions which significantly alter the development for which consent was sought.

44. More relevant for present purposes is the following extract at 186 from the Chief Judge’s judgment which recognises the essential separateness of the questions concerning (i) the extent to which a development may be amended or varied by the exercise of the power to grant conditional development consent under the EP&A Act, s 80(1)(a); and (ii) the extent to which an applicant may vary or amend the proposed development (noting that her Honour’s judgment only deals with the first of those questions):

The reference in subcll (a) and (b) to

must be construed, in my opinion, as requiring a consent authority to exercise its powers under s 80(1) only in respect of the particular development application which was lodged. An applicant may amend or vary a development application in the course of its assessment by the consent authority (cl 48A of the

(NSW) expressly allows for such a possibility) but there is no power under the EPA Act or that Regulation for the consent authority of its own motion to make amendments or variations to a development application. What must be determined by the consent authority is the development application as lodged or as subsequently amended or varied by the applicant. The consent authority is not empowered to grant consent to a development which is significantly different from the development which was sought because, as is self-evident, that would not amount to a grant of consent to

45. It follows from what I have just said, that in the present case I am not considering the extent to which the consent authority (or on appeal, this Court) may vary or amend a proposed development by virtue of the exercise of its power to grant conditional development consent to the relevant development application. However, for completeness, I would not want anything said in this judgment to be construed as denying or questioning (i) the existence of such a power that is exercisable by the Court in the course of disposing of a development appeal; or (ii) the practical possibility of an amending plan coming into existence in the course of the hearing of the appeal (in addition to or as the result of this Court’s determination) which amending plan may ultimately be incorporated in the Court’s determination of the development application. The emergence of such an amending plan at the hearing may well fall within the scope of Pt 13 r 16(b1) of the Rules of Court (ie if it is initiated by the applicant) but it need not (ie if it is initiated by the consent authority or by the process of the hearing of the appeal).

46. Plainly therefore, the Applicant’s Motion is not encompassed by the foregoing considerations concerning the scope of the power to grant conditional development consent. Rather, the Motion takes its stand entirely upon the power, if it exists, to allow a development application to be amended or varied by the applicant, with a resultant change to the proposed development.

47. Having clarified the precise nature of the question raised by the Applicant’s Motion, I shall now consider each of the two suggested sources of amendment power (in reverse order).

48. The LEC Act, s 68(1) provides as follows:

68. (1)

In any proceedings before the Court, the Court shall have power at any stage of the proceedings to order, upon such terms as to costs or otherwise as the Court thinks fit, any amendments to be made which, in the opinion of the Court, are necessary in the interests of justice.

49. In my judgment, s 68 does not confer power upon the Court to allow an applicant to a pending class 1 proceeding to amend the development application by substituting plans depicting a changed development from that depicted in the original plans to the development application, which is the subject matter of the appeal.

50. In this respect, it is important to identify with some precision (i) the relevant “proceeding”; and (ii) the Court’s function in respect of that proceeding. In this case the relevant proceeding is that filed in class 1 of the Court’s jurisdiction (see the LEC Act, s 17(d)) instituting the Applicant’s appeal pursuant to the EP&A Act, s 97 against the Council’s deemed refusal of the Applicant’s development application. The Court’s function in respect of that proceeding is to “hear and dispose of the appeal” (the LEC Act, s 17) and in so doing, the Court has “all the functions and discretions” which the Council “had in respect of the matter, the subject of the appeal” (the LEC Act, s 39(2)).

51. Relevantly, the Court’s function (being a relevant “duty”) is “to determine” the development application by “(a) granting consent to the application, either unconditionally or subject to conditions or (b) refusing consent to the application”: vide the EP&A Act, s 80(1).

52. It is against this understanding of the relevant “proceeding” in the present case and the Court’s statutory function in respect thereof, that the question whether s 68 vests the Court with power to allow the Applicant to amend its development application, must be considered.

53. The problem in accepting the Applicant’s submissions that is immediately encountered is to identify how the proceedings are being amended, by an amendment which purports to amend the development application, the existence of which provides (in conjunction with the Council’s deemed refusal of development consent) the very foundation of, and for, the proceedings. Clearly, it is not the proceedings that would be amended by granting the Applicant’s Motion but the development application, which forms the essential foundation for the existence of the proceedings. In my judgment, the amendment power conferred by s 68 is confined to amendment of the relevant proceedings (including of course steps taken in, or documents filed in, those proceedings: cf Pt 10 r 1 of the Rules of Court).

54. In short, the power of amendment conferred by the LEC Act, s 68(1) does not, in my judgment, operate in relation to the development application, the very existence of which, provides the essential foundation for the proceedings: cf Rancast Pty Ltd v Leichhardt Council (1995) 89LGERA 139 at 143 and Sydney City Council v Ilenace Pty Ltd (1984) 3 NSWLR 414 at 423. Accordingly, I hold that the LEC Act, s 68 does not provide the requisite source of power to support or sustain the Applicant’s Motion.

55. The principal source of power relied upon by the Applicant in its submissions is cl 55 of the Regulation which 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.

(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:

the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.

56. It may at once be noted that this enabling provision has existed since the commencement of the EP&A Act, in 1980 in similar form to the present Regulation (vide cl 33 of the Regulation as originally promulgated in 1980 and cl 48 of the Regulation that was substituted for the original Regulation in 1994). Significantly for a proper understanding of the earlier cases that I shall later discuss, it is also to be noted that there was no express counterpart provision contained in the town planning legislation provided in the Local Government Act 1919, Pt XIIA (which was repealed upon commencement in 1980 of the EP&A Act).

57. The language employed by cl 55 of the Regulation, namely, “amendment or variation of a development application” can be traced back to the EP&A Act, s 77(6) as originally enacted, which provided as follows:

The regulations may make provision for or with respect to the amendment or variation of development applications.

58. Section 77(6) was repealed as part of the repeal of the whole of Pt 4 (“Environmental Planning Control”) of the EP&A Act, effected by the Environmental Planning and Assessment Amendment Act 1997 (Act No 152 of 1997) which came into force on 1 July 1998.

59. Although not re-enacted in terms within the substituted Pt 4 (“Development Assessment”), the principle of the capacity for development applications to be amended or varied was maintained by the inclusion in the substituted Pt 4 of s 78A subsection (1) of which provides as follows:

A person may, subject to the regulations, apply to a consent authority for consent to carry out development.

60. Part 6 of the Regulation contains detailed provisions relating to “development applications” including the form and content of a development application (cl 50), the withdrawal of development applications (cl 52), requirements for additional information to be supplied concerning the proposed development (cl 54) and the procedure for amending development applications (cl 55).

61. As will presently be shown, somewhat surprisingly, no case was cited during the argument (in which many decisions were referred to) providing an authoritative judicial interpretation of cl 55 of the Regulation (or any of its previous counterparts going back to the commencement in 1980 of the EP&A Act). My own researches have also failed to find any relevant previous decision. Accordingly, the principal issue raised in the acutest form by the competing Motions must concern the proper interpretation of cl 55 of the Regulation.

62. However, I shall defer my decision on the proper interpretation of cl 55 of the Regulation until I come to consider the second of the three questions I have posed.

63. For present purposes, the more pressing question is how does the Court become vested with the power conferred by cl 55 of the Regulation on a consent authority “to agree” (or not to agree) to the applicant amending or varying the development application. In terms, cl 55 confers a conditional power upon an applicant, namely to amend or vary the development application, but conditional upon the agreement of the consent authority. Accordingly, the only “power” conferred upon the consent authority, is the power to agree or not to agree, to an applicant’s proposed amendment or variation of the development application.

64. The Applicant submits that this question has been fully answered by the recent decision of Cowdroy J in Ross Karp Pty Ltd v Randwick City Council (1999) 106LGERA 397 where his Honour held at 401 that the LEC Act, s 39(2) invested the Court with “all of the consent authority’s power including that referred to in reg 48A of the Regulation” (that regulation being the immediate predecessor counterpart to cl 55 of the Regulation).

65. In that case (which involved a series of revised plans in support of a development application) his Honour rejected the Council’ argument recorded at 399 that the Court “does not have jurisdiction to determine the appeal other than in respect of the development application which was before the council….the Court cannot hear an appeal incorporating amended plans that were never before council”.

66. In rejecting these submissions, Cowdroy J held (at 400) that they “overlook the power vested in the Court pursuant to s 39(2) of the Court Act”.

67. After reviewing many of the leading cases expounding the extent of the power vested in the Court by the LEC Act, s 39(2) Cowdroy J concluded at 401:

Regulation 48A is not relevant to the issue of the Court’s jurisdiction. It entitles a development application to be amended or varied before determination. The same power by virtue of s 39(2) is vested in the Court since whatever the council could do the court can do (see Reynolds JA in Kent at 337).

The decision of this Court in Rosecorp does not assist the council. The determination that the Court is not a consent authority by definition for the purpose of the EP&A Act is not relevant to the power vested in the Court by s 39(2) of the Court Act. Such a section invests the Court with all of the consent authority’s power, including that referred to in reg 48A of the Regulations. The submission of the council would only have force if council itself did not have the power to consider a varied plan or an amended plan in respect of a development application before it.

68. The decision in Ross Karp holding that the LEC Act, s 39(2) invested the Court, in hearing and disposing of a development appeal, with the power conferred upon a consent authority by cl 48A of the 1994 Regulation (the immediate predecessor to cl 55 of the Regulation) is supported by the earlier decision of the Chief Judge of this Court in Toadolla Corp Pty Ltd v Dumaresq Shire Council (1992) NSWLEC 129 considering the earliest predecessor to cl 55 of the Regulation.

69. In that case, the Chief Judge was hearing a development appeal against the council’s refusal of an application to subdivide land into four lots where at the commencement of the hearing, the applicant sought leave to substitute two alternate subdivision plans for the original plan of subdivision. Although leave was refused, the different subdivision plans were received into evidence and the applicant conducted its case upon the basis that development consent was being sought for one or the other of the two alternate plans of subdivision, despite the council’s “protest that there was no power for the Court to deal with an application amended in this way”.

70. It was in those circumstances that the Chief Judge stated in her judgment that the “first issue which arises therefore, is the true substance of what the applicant seeks in the appeal and the power of the Court to entertain an application involving an amended plan”.

71. After reciting the provisions of the EP&A Act and Regulation concerning amendments to development applications and the provisions of the LEC Act s 39(2), the Chief Judge referred to two earlier decisions of other Courts dealing with similar statutory planning appeal regimes to that which applies to this Court namely Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303 and R v Shanahan & Ors Ex Parte Northern Territory Planning Authority (1984) 54 LGRA 255 (which cases had been cited by the parties as “describing the limits of the Court’s power to entertain an amendment to the application that is the subject of the appeal”). The Chief Judge having observed that those decisions were “not in conflict” stated:

They support the proposition that the Court has jurisdiction to determine the appeal and to permit amendment of the plan submitted with the initial application, unless the substituted plan converts what is before the Court into a fresh application by so changing the content of the application that it deprives the application of its character as the subject of an appeal (see

Shanahan’s

case at 263).

72. In the result the Chief Judge found that the amendment (which did not simply involve a re-configuration of the proposed subdivided lots, but also involved a greater amount of land to be subdivided) was a fresh application and was “not the matter in respect of which the council made its determination by refusing development consent”. Whereas it will later become necessary to further consider the decision in Toadolla, together with other relevant previous decisions for whatever light they may cast upon the proper interpretation of cl 55 of the Regulation, the point to note that is of immediate importance is the fact that in Toadoalla, the Chief Judge appears to have interpreted s 39(2) of the LEC Act in a manner that vested the Court with the statutory power to permit amendment of the plan depicting the proposed development.

73. Although the Council has not questioned the correctness of the decision in Ross Karp, the decided cases have identified two important conditions that must, in my opinion, be satisfied before it can be concluded that the LEC Act, s 39(2) vests the Court with the power conferred upon a consent authority by cl 55 of the Regulation. These conditions are
(i.) the power conferred by cl 55 of the Regulation is only available to the Court “for the purpose of hearing and disposing of the appeal”; and
(ii.) the power conferred by cl 55 of the Regulation must relevantly be a power which the Council “had in respect of the matter, the subject of the appeal”.

74. The importance of the first mentioned condition is demonstrated by the later extempore decision of Cowdroy J in Basement Pty Ltd v Baulkham Hills Shire Council (2001) NSWLEC 95, where his Honour (without referring to his earlier decision in Ross Karp or to the LEP Act, s 39(2)) appears to have adopted a narrower view of the Court’s power to entertain an amendment to a development application, when he refused a motion by an applicant to a pending development appeal seeking leave of the Court pursuant to Pt 13 r 16(b1) of the Rules of Court to “substitute amended plans at the hearing of the appeal” by emphasising the effect of the EP&A Act, s 97 in the following passages at par 15 and par 16:
15. An applicant who is dissatisfied with the determination of a consent authority is provided a right of appeal by s 97(1) of the EP&A Act. However it could not be said that the council has made a determination in respect of the proposed development because it is different from that which it has considered. There may be a reduction in environmental impacts resulting from the proposed changes or possibly greater impacts. The development for which consent is now sought has not been assessed and there is no council determination made in respect of them.
16. In these circumstances if the Court granted leave it would hear an appeal in respect of a development application which council had never considered. As such the Court would be exceeding its jurisdiction since the appeal is not an appeal from the determination of council.

75. However, upon closer analysis, it does not appear that his Honour was intending to abrogate the effect of his earlier decision in Ross Karp holding that by virtue of the LEC Act, s 39(2), the Court possessed the amendment power conferred by cl 55 of the Regulation. Rather, it would appear that in so concluding that the Court would have no jurisdiction in an appeal which was not “an appeal from the determination of council”, his Honour was holding what Samuels J (as he then was) had held 28 years earlier in Manchil, that the then planning appellate body (a Board of the Local Government Appeals Tribunal) “had no jurisdiction to entertain an original application” (308). However, it is, I think, important to contextualise Samuels J’s dictum, by quoting the relevant passage from his judgment, noting in particular, that his Honour was considering a statutory empowering provision in virtually the same terms as the LEC Act, s 39(2). His Honour, after reciting the terms of that statutory provision, immediately concluded:

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.

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

[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.

79. It is well settled that the Court’s function of “hearing and disposing of an appeal” involves the Court in the exercise of original jurisdiction: see Randwick Municipal Council v Janlz Constructions Pty Ltd (1976) 35 LGRA 70 and Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630.

80. Thus, to adopt (with necessary adaptations) the words of Glass JA at 72 in Janlz “on appeal to it, the Court is making an original investigation to determine whether the developer’s application for consent should be granted and is not deciding an appeal against the correctness of the Council’s decision”.

81. In Janlz, Glass JA referred, with approval to the decision of New Zealand’s Court of Appeal in Ross v Town and Country Planning Appeal Board (1976) 2NZLR 206 where that Court unanimously held that the statutory appellate function of the planning appeals body involved “in substance an exercise by the board of an original jurisdiction to determine the application or objection completely afresh, on the basis of the evidence before it and in the light of the circumstances prevailing at the time of its decision”: per Richmond J at 217.

82. However, and notwithstanding the truly original nature of the Court’s function in hearing and disposing of an appeal it must be emphasised that the relevant jurisdiction that is vested in the Court is that which is solely founded upon the fact of an appeal pursuant to the EP&A Act, s 97 by “an applicant dissatisfied with the determination of a consent authority with respect to the applicant’s development application” (see also the LEC Act, s 17(d)).

83. The following basal propositions may, I think, legitimately be derived from the foregoing discussion—
(i.) the Court’s jurisdiction is relevantly enlivened by an appeal brought pursuant to the EP&A Act, s 97, such an appeal encapsulating the following jural facts—
(a) an appeal to the Court brought by an applicant;
(b) who is dissatisfied with the determination of a consent authority;
(c) made with respect to the applicant’s development application; and

hearing and disposing (that) appeal

84. My conclusion that cl 55 of the Regulation is included in the powers relevantly available to the Court “in hearing and disposing of an appeal” necessarily involves a finding of the satisfaction or fulfilment of the second of the two conditions essential for the operation of the LEC Act, s 39(2) earlier postulated, ie the power conferred by cl 55 of the Regulation was relevantly available to the Council when it was considering the Applicant’s development application.

85. However, this finding is arrived at, not without some difficulty, because it is to be recalled that the relevant power conferred upon a consent authority is not the power to amend a development application, but the power to agree (or not to agree) to an amendment made by the applicant. Accordingly, absent any such proposed amendment by the applicant, the question arises as to whether there is any relevant power vested in the consent authority. In the present case, where the amendment has been proposed for the first time by the Applicant only after it had appealed the Council’s determination of its development application (being relevantly a deemed refusal of consent by virtue of the EP&A Act s 82), it is an obvious fact that the relevant power conferred by cl 55 of the Regulation lay dormant throughout the period that the development application was lodged with the Council until, by virtue of the EP&A Act, s 82, it was deemed to have been determined by the Council refusing development consent.

86. The question that arises is whether, in the light of these facts, it can be said that the Council relevantly possessed the power conferred by cl 55 of the Regulation in respect of the Applicant’s development application, when factually the power lay dormant. After some hesitation, I think that the question can be answered affirmatively. The power conferred by cl 55 of the Regulation upon a consent authority is, by its nature, only a responsive power in the sense that it is only enlivened by an applicant seeking to amend the development application.

87. Nonetheless, the power, albeit lying dormant, is possessed by a consent authority, and it is possession of the power, rather than its activation or exercise, which is relevant to the operation of the LEC Act, s 39(2).

88. Since the power was relevantly possessed by (or vested in) the Council in respect of the Applicant’s development application, albeit unactivated because the Applicant had not sought to amend the development application before it was determined, it is likewise relevantly available to the Court by virtue of the LEC Act, s 39(2) and where, as in the present case, the power has been activated by virtue of the Applicant’s proposed amendments to its development application, the Court in hearing and disposing of “the appeal”, by itself determining in the exercise of original jurisdiction whether or not to grant development consent, may exercise the available power conferred by cl 55 of the Regulation to agree (or not to agree) to the amendment of the development application.

89. In so concluding, I do not find it necessary to delve deeply into the power conferred upon the Court by the LEC Act, s 39(2) which has been much discussed and expounded in many decided cases. Just a few days ago, in his judgment in Gibson v Mosman Municipal Council (2001) NSWLEC 134 Talbot J cited some 21 reported cases and his judgment contains a helpful survey of many of them.

90. What emerges from the decided cases is that they have tended to focus attention upon the concluding words of s 39(2), namely “had in respect of the matter the subject of the appeal”, as providing the solvent to the question whether a particular power is available to the Court, in any given case.

91. In McDougall v Warringah Shire Council (1993) 80 LGERA 151, which contains the most extensive discussion and exposition of s 39(2) to be found in the decided cases, Kirby P (as he then was) held at 154 the concluding words of the statutory provision to be “wide and ambiguous” and at 161 to be “words of extremely broad connection and wide denotation”. His own impression, initially expressed at 157 and sustained in his conclusions at 161 and 162, was that “it was intended that the Land and Environment Court be placed fully in the shoes of a council at the time an application is lodged”.

92. In respectfully adopting Kirby P’s interpretive approach, it would be appropriate to conclude (as I do) that “the matter the subject of the appeal” is relevantly the Applicant’s development application seeking development consent for the proposed development, recognising that a wider interpretation is possible, namely the “proposed development” cf Ross v Town and Country Planning Appeal Board at 220, where Cooke J suggested, of a similar provision in the New Zealand town planning legislation, that “the matter” was “the land” comprising the development site.

93. For all the foregoing reasons, I hold that the Court, by virtue of the LEC Act, s 39(2) is invested with the power conferred by cl 55 of the Regulation to agree (or not to agree) to the Applicant’s proposed amendment to development application as applied for in the Applicant’s Notice of Motion.

94. Whether or not the amended plans relevantly are an amendment to the development application must now be determined.

D. WHETHER THE AMENDED PLANS CONSTITUTE AN AMENDMENT OF THE DEVELOPMENT APPLICATION IN THE SENSE THAT THE DEVELOPMENT DEPICTED IN THE AMENDED PLANS IS A CHANGE (BY WAY OF AN AMENDMENT OR A VARIATION) TO THE DEVELOPMENT THAT IS DEPICTED IN THE ORIGINAL PLANS

95. As I have earlier stated, this question requires firstly the interpretation of cl 55 of the Regulation in order to determine the nature and extent of the amendment power and thereafter an application of that interpretation of the power to the found facts of the case.

96. In determining the proper interpretation of cl 55 of the Regulation, I should at once notice an obvious limitation on the power that does not arise in the present case because of the fact that the Council has not “determined” the Applicant’s development application. In this respect, it is to be noted that the “deemed” determination of the development application in the present case that was created by the EP&A Act, s 82 is only for the purposes of s 97 of the Act.

97. Accordingly, the express limitation on the power of amendment conferred by cl 55 ie that the relevant amendment be made “at any time before the application is determined” is satisfied in the present case because there has not yet been any relevant “determination”.

98. Had the facts been otherwise and there had been an actual (rather than a deemed) determination of the Applicant’s development application, the question would have arisen as to whether the power conferred by cl 55 was available to the Court by virtue of s 39(2) of the LEC Act, notwithstanding the fact that the development application had already been determined. For completeness, I should refer to my decision in Rancast where the Court, in the context of its appellate function in respect of a building application under the Local Government Act 1993 was considering the statutory entitlement conferred by s 87 for an applicant to make a “minor amendment” to the application “at any time before the application is determined” I held at 142 that that entitlement would be available to an applicant “at any time before the Court determined the pending appeal” recognising that that conclusion required an interpretation of the statutory expression “at any time before the application is determined” that was sufficiently flexible to embrace the Court’s ultimate determination in an appeal against the Council’s prior determination refusing approval. Applying that decision, the question would be answered in the affirmative.

99. I come, then, to the proper construction of cl 55 of the Regulation, noting again that no decided case was cited (nor am I aware of any such case) which provides a judicial interpretation of the clause (or any of its prior legislative counterparts tracing back to the original provision contained in cl 33 of the 1980 Regulation made under the EP&A Act) and also noting that the NSW cases decided prior to the enactment in 1980 of the EP&A Act (and in particular Manchil) and the non-NSW cases (and in particular Shanahan) were based upon the assumption of an implied but undefined power to amend a development application.

100. Having regard to the very detailed provisions contained in the EP&A Act and Regulation that I have earlier referred to dealing with the making of development applications (including the amendment of development applications) and the determination of development applications there is, in my judgment, no longer any sound basis or justification for implying any power of amendment of a development application, such as was implied in Manchil (and earlier NSW decisions eg Bankstown Municipal Council v Estates Property Investment Co Pty Ltd (1970) 21 LGRA 433 and Parramatta City Council v Nadroj Pty Ltd (1968) 17 LGRA 81) where the justification for implying such a power lay in the primitive nature of the then prevailing town planning legislation and the absence of comprehensive detailed machinery provisions for making, processing and determining development applications.

101. Nor, because of the existence of those detailed provisions contained in the EP&A Act and the Regulation, is there justification for implying the power to amend or to permit amendment of plans forming the basis of a development application, such as was implied by the South Australian Supreme Court in Independent Holdings Ltd v Adelaide City Planning Commission (1994) 63 SASR 318 where the justification for implying such a power lay in the fact that the planning regulations had formerly provided a right of amendment, but no longer did so and that it was “manifestly convenient that such a power should exist” per King CJ at 326.

102. For the moment therefore, I put aside the question of what, if any, assistance such decided cases provide in quest of the proper construction of cl 55 of the Regulation. After I have construed cl 55, I shall revisit that question to determine whether the course of authority in the decided cases should carry any influence or impact upon the construction I will initially provisionally adopt, before concluding what is the proper construction of cl 55 of the Regulation.

103. The full effect of power created by cl 55, is appreciated by reading the clause as an entirety, and in particular, subclause (1) and (2) which clearly indicate the following three elements of the created power—
(i.) an applicant may, with the agreement of the consent authority
(ii.) at any time before the development application is determined,
(iii.) amend or vary that application which may result in a change to the proposed development

104. Element (iii) recognises that it is possible that an amendment or variation may, or may not, result in a “change to the proposed development”.

105. However, it is important to note that that which may be amended or varied is a “development application”. This is a defined term meaning:

an application for consent under Part 4 to carry out development but does not include an application for a complying development certificate.

106. As I have earlier pointed out, the EP&A Act, s 78A(1) provides

A person may, subject to the regulations, apply to a consent authority for consent to carry out development

107. Clause 50 of the Regulation defines the form and content of a development application. For example, the development application “must contain the information and be accompanied by the documents, specified in Part 1 of Schedule 1” : Subclause (1)(a).

108. Clause 1 of Schedule 1 lists the “information” that a development application “must contain” including:
(b) a description of the development to be carried on

109. Clause 2(1) of Schedule 1 lists the documents that must accompany a development application, including:
(a) a site plan of the land;
(b) a sketch of the development;
(c) a statement of environmental effects (in the case of development other than designated development);
(d) in the case of development that involves the erection of a building, an A4 plan of the building that indicates its height and external configuration, as erected, in relation to its site (as referred to in cl 56 of this Regulation).

110. Clause 2(3) of Schedule 1 requires the “sketch of the development” (that is required by cl 2(1)(b)) to “indicate the following matters:
(a) the location of any proposed buildings or works (including extensions or additions to existing buildings or works) in relation to the land’s boundaries and adjoining development,
(b) floor plans of any proposed buildings showing layout, partitioning, room sizes and intended uses of each part of the building,
(c) elevations and sections showing proposed external finishes and heights of any proposed buildings,
(d) proposed finished levels of the land in relation to existing and proposed buildings and roads,
(e) proposed parking arrangements, entry and exit points for vehicles, and provision for movement of vehicles within the site (including dimensions where appropriate),
(f) proposed landscaping and treatment of the land (indicating plant types and their height and maturity),
(g) proposed methods of draining the land.

111. Since it is a “development application” (meaning the aforesaid written documents) that may be “amended” or “varied”, these words, being ordinary words of the English language, prima facie should be accorded their ordinary meanings, particularly in the context of cl 55, given its clearly facultative purpose.

112. The most apt dictionary meanings are:

Amend to alter : Macquarie Dictionary

Vary 1. to change or alter, as in form, appearance, character, substance, degree etc.

2. To cause to be different, one from another.: Macquarie Dictionary

113. Next to be considered is the expression “a change to the proposed development”. Again, in its context, the word “change” prima facie is to be given its ordinary meaning as an ordinary English word, the most apt dictionary meanings being:

n. 17

variation, alteration, modification deviation, transformation.

18. the substitution of one thing for another: Macquarie Dictionary

change v. 1. To make different, to alter in condition, appearance etc.

2. to substitute another or others for: Macquarie Dictionary

114. 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, modification to the proposed development.

115. 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”.

116. In so concluding, I have paid particular attention to the express objects of the EP&A Act (s 5) and particularly the object stated in par (c):

to provide increased opportunity for public involvement and participation in environmental planning and assessment

and to the provisions of the Act and Regulation which promote this object eg the concepts of “designated development” and “advertised development” and the provisions of the Act (eg s 79 and s 79A) and of the Regulation (vide Pt 6 Div 5, 6 and 7). In the present case, it is common ground that the proposed development is “other advertised development”. Accordingly, the provisions of Div 7 of Pt 6 of the Regulation apply. In accordance with those provisions a development application for “other advertised development” must be publicly notified: vide cl 87.

117. Clause 90 deals with the circumstances where such a development application has been “amended or substituted….or replaced” before being determined by the consent authority and where the consent authority has publicly notified the original development application. The clause empowers the consent authority to dispense with “further compliance” with the public notification requirements of the Division where it is “of the opinion that the amended, substituted or later application differs only in minor respects form the original application” (cf the EP&A Act, cl 79(6) dealing with similar circumstances in the case of designated development).

118. However, the consent authority need not exercise the dispensing power in which event there is an implied duty to re-notify publicly the amended or substituted application. Again, in the present case, it is common ground that if leave is granted to the Applicant to rely upon the amended plans, there should be further compliance with the public notification requirements of Div 7 of Pt 6 of the Regulation.

119. I have referred at some length to the relevant provisions of the EP&A Act and Regulation prescribing the requirements for public notification of certain development applications to demonstrate that the Act and Regulation provide a detailed and comprehensive code for the making of development applications, the amendment of applications, the public notification of certain applications and the determination of development applications. Both the Act and the Regulation which provide the capacity for development applications to be amended also make provision for appropriate public notification of applications, including those that are amended etc. There is no uncertainty in these provisions and there is no legislative gap in the statutory procedures.

120. Accordingly, no question arises in the present case of any conflict or collision between the provisions of the Act and Regulation enabling development applications to be amended and those provisions requiring public notification of development applications (including amended applications) in fulfilment of the Act’s express object to provide increased opportunity for public participation, such as arose in relation to the former town planning legislation considered by the Court of Appeal in 1974 in Parkes Developments.

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. Firstly, 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) NSWLEC 174; Khouri v Burwood Council (2001) NSWLEC 124) 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 cl55 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” (308) and in Shanahan Nader J regarded Manchil “as providing significant guidance” before concluding (at 263) “that despite the wide powers conferred upon the (planning appeals) committee (by sections of the Northern Territory Planning Act), 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 265, Nader J restated his earlier conclusion, but in the following different terms:

Having decided that,

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 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 Act, the committee was vested with

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 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 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:

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 Act which forbids such a course. There are no third party rights under the 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 Act in so rigid a manner.

134. However, because of the existence of a provision of the South Australian Planning 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.

135. The Chief Justice expounded the necessary limitations by holding that earlier Full Court decisions in City of Marion v Becker (1973) 6 SASR13 and Hancock Development Corporation Pty Ltd v City of Tea Tree Gully (1986) 42 SASR 584, (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 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 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”.

140. Applying this construction of the amendment power created by cl 55 to the facts of the present case, I make the following ultimate findings—
(i.) the amended plans relevantly amend or vary the development application by substituting documents providing the required “sketch of the development”; and
(ii.) the amended plans relevantly “change”, in the sense of altering varying or modifying the proposed development as it was depicted in the original plans.

141. For completeness, I would add that if, contrary to what I have held, the true construction of the amendment power created by cl 55 of the Regulation be assumed to yield only a power of amendment circumscribed or delimited so as to permit only an amendment which did not convert the proposed development into something “substantially different” (Manchil) or “fundamentally different in character” (City of Marion), I would find that the “amended plans”, though involving extensive amendments to the proposed development, did not result in a change to the essential character of the proposed development and did not result in an alteration to the proposed development so as to radically transform it (cf North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97 LGERA 433 at 438 referring to the statutory power of “modification” of development consent conferred by s 102 of the EP&A Act, since re-enacted as s 96).

142. Accordingly, for all the foregoing reasons, I hold that the amended plans relevantly constitute an amendment of the Applicant’s development application. It follows that I am of the opinion that the Court is vested with the power created by cl 55 of the Regulation to agree (or not to agree) with the Applicant’s proposed amendments. In so concluding, I have generally adopted the Applicant’s argument.

143. It further follows that the Council has not substantiated its claim to a declaration that the Court lacks jurisdiction to allow the Applicant to rely upon the amended plans.

144. The outstanding question is how in the exercise of its discretion should the Court exercise the statutory power?

E. WHETHER (IF QUESTIONS (I) AND (II) BE EACH ANSWERED AFFIRMATIVELY) THE COURT SHOULD, IN THE EXERCISE OF ITS DISCRETION, GRANT LEAVE (EITHER UNCONDITIONALLY OR UPON TERMS) FOR THE APPLICANT TO RELY AT THE HEARING UPON THE AMENDED PLANS.

145. The Council makes a number of submissions as to why the Court should not, in the exercise of its discretion allow the Applicant to rely upon the amended plans.

146. Firstly, it draws attention to the fact that the amended plans do not contain shadow diagrams or a detailed landscape plan.

147. Likewise, it submits that the Applicant should submit an amended Statement of environmental effects.

148. I agree that these further documents are important and should be submitted to the Council.

149. However, this is a present default by the Applicant that can be readily cured by the imposition of an appropriate term of any leave granted for the Applicant to rely upon the amended plans.

150. Next, the Council submits that the Council should be compensated for the fact that it is not receiving from the Applicant additional development application fees in respect of the amended plans to which it would have been entitled if instead of amending the development application, the Applicant had lodged a fresh development application.

151. It is common ground that the Regulation does not impose any obligation for an applicant seeking to amend a development application to pay additional fees. However, the Council submits that for such a large development as is proposed in the present case, it should fairly receive a compensatory fee and its imposition would be justified as a term of the grant of the leave sought by the Applicant’s Notice of Motion.

152. I think there is force in this submission and if leave is granted I am of the opinion that the sum of $5,000 should be paid to the Council as compensation for its consideration of the amended development application, this amount being in addition to payment of the fees incurred in the further public notification required by the Regulation in respect of the amended development application.

153. I have earlier indicated that an appropriate term of any leave granted to the Applicant’s Notice of Motion will be the requirement that it elect between the original plans and the amended plans as the form of the proposed development for which it seeks development consent from the Court. Assuming that the Applicant elects to proceed with the amended plans, then the Council may wish to revive its application for costs thrown away (by virtue of the circumstances leading to the vacating of the hearing last July) which was not finally adjudicated upon in my earlier judgment because the claim was held to be “premature” (at 317) when I added:

However, this conclusion does not mean that the Council will be prevented at some stage in the future course of the present proceedings from seeking an order for costs thrown away, if it seeks to assert such an entitlement.

154. There is, in my opinion, no doubt that the Court is vested with a wide discretion as to whether it agrees or does not agree to the proposed amendments to the Applicant’s development application. That discretion must of course be exercised by the Court in execution of its statutory function to hear and dispose the Applicant’s appeal and this circumstance of course is different from the circumstance where an applicant for development consent in the course of negotiating with a consent authority seeks the consent authority’s agreement to an amendment of the development application.

155. Such agreement may be presumed to be readily forthcoming where the consent authority perceives that the proposed amendments enhance the development and/or ameliorate its impacts, by responding to suggested improvements or changes to the proposed development arising out of the Council’s consideration of the development application or its consideration of public submissions etc in a case, such as the present, where the development application is required to be publicly notified.

156. Although the Court obviously is not involved in any process of negotiation between the parties (except when it is providing its mediation services) nonetheless, the Court’s exercise of discretion will be influenced by considerations, such as are here present, involving amendments to the development application designed to satisfy as many of the Council’s objections raised against the proposal as the Applicant is willing to meet.

157. Other important considerations informing the Court’s exercise of discretion will be considerations of fairness to the parties in the preparation of their cases and fairness to members of the community who may be affected by the development proposal and/or by its proposed amendment and wish to participate in the process.

158. Finally, and importantly, there is the consideration of the fact that the Court’s statutory function is appellate in the sense that its jurisdiction is wholly dependent upon an appeal brought by an applicant dissatisfied by the Council’s determination of the development application.

159. Although this last mentioned matter has already been considered in determining that the LEC Act, s 39(2) applies in the present case to vest the Court with the amendment power created by cl 55 of the Regulation, the exercise of that power mediated via s 39(2) must necessarily be cautious in cases, such as the present, where the Council has refused to exercise it. However it must be noted that the Council retains the power to determine the Applicant’s development application (including an amended application) notwithstanding the existence of the pending appeal: vide s 82(2) of the EP&A Act.

160. Weighing all these considerations in the balance, I have decided to exercise the power by agreeing to the proposed amendment and granting leave as sought in the Applicant’s Notice of Motion but subject to appropriate terms.

F. ORDERS

161. For all the foregoing reasons, I make the following orders—

1. The Council’s Notice of Motion is dismissed.

2. The Applicant’s Notice of Motion is upheld to the extent reflected in the following orders.

3. Leave is granted to the Applicant to rely upon the amended plans referred to in its Notice of Motion upon the following terms—

(i) the Applicant shall serve upon the Council within 14 days the following additional documents to support the amended development application—

(a) shadow diagrams

(b) landscape plan

(ii.) the Applicant shall notify in writing within 14 days the Council and the Court of its election between the original plans and the amended plans as referred to in the Applicant’s Notice of Motion upon which it proceeds;

(iii.) the Applicant shall pay to the Council the sum of $5,000 as compensation for the Council’s consideration of the amended plans together with a sum sufficient to defray the costs incurred in the public notification pursuant to the Environmental Planning and Assessment Regulation 2000 of the amended development application.

4. Costs of the Council’s Notice of Motion and of the Applicant’s Notice of Motion reserved.

CITATION:	Ervin Mahrer and Partners v Strathfield Municipal Council [No 2] [2001] NSWLEC 140
PARTIES:	APPLICANT: Ervin Mahrer and Partners RESPONDENT: Strathfield Municipal Council
FILE NUMBER(S):	10088 of 2000
CORAM:	Bignold J
KEY ISSUES:	:- Whether Applicant on a development appeal should be granted leave to rely upon amended plans
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Rules 1996, pt 13 r 16(b1)
CASES CITED:	Addicoat v Fox (No 2) (1978) 37 LGRA 411; Bankstown Municipal Council v Estates Property Investment Co Pty Ltd (1970) 21 LGRA 433; Basement Pty Ltd v Baulkham Hills Shire Council (2001) NSWLEC 95; Carr v Minister for Land and Water Conservation (2000) 109 LGERA 175; City of Marion v Becker (1973) 6 SASR13; Gibson v Mosman Municipal Council (2001) NSWLEC 134; Hancock Development Corporation Pty Ltd v City of Tea Tree Gully (1986) 42 SASR 584; Independent Holdings Ltd v Adelaide City Planning Commission (1994) 63 SASR 318; Khouri v Burwood Council (2001) NSWLEC 124; McDougall v Warringah Shire Council (1993) 80 LGERA 151; Mison v Randwick City Council (1991) 23 NSWLR 734; Moore v Randwick Municipal Council (1980) 46 LGRA 244; Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630; North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97 LGERA 433; Parkes Developments Pty Ltd v Cambridge Credit Corp Ltd (1974) 33 LGRA 196; Parramatta City Council v Nadroj Pty Ltd (1968) 17 LGRA 81; R v Shanahan & Ors Ex Parte Northern Territory Planning Authority (1984) 54 LGRA 255; Rancast Pty Ltd v Leichhardt Council (1995) 89LGERA 139; Randwick Municipal Council v Janlz Constructions Pty Ltd (1976) 35 LGRA 70; Ross Karp Pty Ltd v Randwick City Council (1999) 106LGERA 397; Ross v Town and Country Planning Appeal Board (1976 2 NZLR 206; Songkal v Warringah Council (2000) 111 LGERA 71; Sydney City Council v Ilenace Pty Ltd (1984) 3 NSWLR 414; Toadolla Corp Pty Ltd v Dumaresq Shire Council (1992) NSWLEC 129; Tong Joo Pty Ltd v Mosman Council (2001) NSWLEC 87; Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451; Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303; York Developments Pty Ltd v Liverpool City Council (2000) NSWLEC 174
DATES OF HEARING:	8 March 2001
DATE OF JUDGMENT:	06/29/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr C Ireland, Solicitor SOLICITORS Blake Dawson Waldron RESPONDENT: Mr D Baird, Solicitor SOLICITORS Price Waterhouse Coopers

[2001] NSWLEC 140

29/06/2001