Khouri v Burwood Council - [2001] NSWLEC 124

Reported Decision: 115 LGERA 1

Land and Environment Court

of New South Wales

CITATION: Khouri v Burwood Council and Anor [2001] NSWLEC 124

PARTIES:
APPLICANT:
Khouri
RESPONDENTS:
Burwood Council and Anor

FILE NUMBER(S): 10673 of 2000

CORAM: Talbot J

KEY ISSUES: Development Application :- amended plans - whether new development - impact on direction pursuant to s 88A of the EP&A Act 1979

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 88A
Land and Environment Court Rules 1996 Pt 13 r 16

CASES CITED: Andari-Diakanastasi v Rockdale Council [2000] NSWLEC 250;
Parkes Developments Pty Ltd v Cambridge Credit Corporation & Anor (1974) 33 LGRA 196;
Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303

DATES OF HEARING: 03/04/2001

EX TEMPORE
JUDGMENT DATE :
04/03/2001

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M V Sahade (Barrister)
SOLICITORS:
N/A
FIRST RESPONDENT:
Mr R K Graham (Solicitor)
SOLICITORS:
Abbott Tout
SECOND RESPONDENT:
Mr G A Green (Solicitor)
SOLICITORS:
Pike Pike and Fenwick

JUDGMENT:

IN THE LAND AND Matter No. 10673 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 3 April, 2001

George Khouri

Burwood Council

Minister Administering the Environmental Planning and Assessment Act 1979

Second Respondent

REASONS FOR JUDGMENT

1. HIS HONOUR: The applicant in these proceedings is George Khouri, who I understand to be the architect responsible for the preparation of the plans the subject of a development application made to the respondent council. The development application was lodged with the respondent council on 2 February 2000. It relates to Lot 13 in DP 736048 Railway Parade, Burwood. According to the description of the development, which I find in a copy of a direction made pursuant to s 88A of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) by the Minister for Urban Affairs and Planning (“the Minister”) on 10 July 2000, it was accompanied by a Statement of Environmental Effects dated 29 December 1999.

2. From what I have just said it is apparent that on 10 July 2000 the Minister made a direction to Burwood Council whereby he directed the council to refer the development application to him for his determination. The Minister indicated that he had formed the opinion that it is expedient in the public interest to give the direction, having had regard to the matters that in his opinion are of significance to state or regional environmental planning.

3. The plans originally lodged with the council and which remained the subject of the development application when the development application was called in pursuant to s 88A of the EP&A Act, depicted a building which presented as one building with 7 residential levels over two levels of commercial use with parking provided over four levels for 209 vehicles.

4. The building facade was stepped on the north and it was also stepped to some extent on the west. The access to the carpark was by means of a ramp entering the building at the ground…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2001] NSWLEC 124
Decision Date: 04/03/2001

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Khouri v Burwood Council was heard by Talbot J. The applicant, George Khouri, sought to amend the plans associated with a development application that had been called in by the Minister under s 88A of the Environmental Planning and Assessment Act 1979. The crux of the dispute was whether the amended plans could be considered amendments to the original application or if they constituted a new development. The respondents, Burwood Council and the Minister, argued that the changes were substantial enough to warrant treating the application as new, which would require recommencing the approval process. Talbot J found that the changes, including the configuration of the building and the internal provisions, were significant enough to constitute a new development. Consequently, the amended plans were rejected, and the application was deemed to require a fresh assessment.

Talbot J's judgment delved into the legal principles governing amendments to development applications. The court noted that while amendments to plans are permissible, they must not fundamentally alter the nature of the proposed development. The judge considered the impact of the proposed changes on the surrounding environment and the interests of potential objectors, drawing on precedents such as Willoughby Municipal Council v Manchil Pty Ltd and Parkes Developments Pty Ltd v Cambridge Credit Corporation. The court also highlighted the procedural safeguards within the EP&A Act, which aim to protect objectors' interests. Ultimately, Talbot J concluded that the changes were so substantial that the amended plans should be treated as a new development application, necessitating a fresh review process. This decision underscores the importance of maintaining the integrity of the planning and approval process in development applications.

Orders