Lateral Estate Pty Ltd v The Council of the City of Sydney

[2017] NSWLEC 6

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lateral Estate Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 6
Hearing dates:	8 December 2016
Date of orders:	08 February 2017
Decision date:	08 February 2017
Jurisdiction:	Class 1
Before:	Sheahan J
Decision:	The proceedings are dismissed. See [95] to [97].
Catchwords:	JURISDICTION: Application for summary dismissal – proceedings alleged to have been filed “out of time” – whether a “deemed refusal” appeal can be brought – alleged amendment of development application, not accepted as such by consent authority.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 62—Sustainable Aquaculture Uniform Civil Procedure Rules 2005 Water Management Act 2000
Cases Cited:	Eco-Villages Australia Pty Ltd v Pittwater Council [2012] NSWLEC 49 Ervin Mahrer & Partners v Strathfield Municipal Council (2001) 115 LGERA 259; [2001] NSWLEC 140 Ipoh Pty Ltd v Sydney City Council (2005) 142 LGERA 373; [2005] NSWLEC 514 Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) (2013) 197 LGERA 238; [2013] NSWLEC 146 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 Mison v Randwick Municipal Council (1991) 23 NSWLR 734; (1991) 73 LGRA 349 Olsson v Goulburn Mulwaree Council & the Minister Administering The Crown Land Act 1989, Olsson v The Minister Administering The Crown Land Act 1989 (2010) 176 LGERA 71; [2010] NSWLEC 169 Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155 Simmons v Marrickville Council; Kababy Pty Limited v Marrickville Council [2012] NSWLEC 133 Songkal Pty Ltd v Warringah Council (2000) 111 LGERA 71; [2000] NSWLEC 215 V’landys v Land and Environment Court of NSW (2012) 193 LGERA 47; [2012] NSWLEC 218 Wall Street Enterprises Pty Ltd v Spooner [2009] 2 Qd R 392; [2009] QSC 28
Category:	Procedural and other rulings
Parties:	Lateral Estate Pty Limited (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Counsel: Mr R Lancaster, SC (Applicant) Mr J Lazarus, barrister (Respondent)   Solicitors: Mills Oakley (Applicant) The Council of the City of Sydney (Respondent)
File Number(s):	2016/337872

Judgment

Introduction

1. The respondent Council in these Class 1 proceedings asks the Court, by Notice of Motion (“NOM”) dated 1 December 2016, to summarily dismiss the applicant’s appeal, pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005.

2. The Council submits, through its counsel, Mr J Lazarus, that the Court lacks the jurisdiction to determine the appeal because, although it was commenced on a “deemed refusal” basis, it was some sixteen months “out of time”.

3. The applicant counters that it amended its development application (“DA”), with the result that time again commenced to run, and the appeal was filed within the resulting time limit, measured from the date of that amendment: see ss 82 and 97 of the Environmental Planning and Assessment Act 1979 (“the EPA Act”).

4. The applicant contends, through its counsel, Mr R Lancaster SC, that its sending of an email about conditions and staging, and the Council’s entertaining of, and replying to, it, constitute amending the DA.

5. The Council submits (Tp4, LL25 – 29) that:

... there is a high level of formality associated with the lodging of development applications, and it's certainly not contemplated by those who drafted these provisions that the sending of an email about some proposed conditions would satisfy the requisite level of formality.

6. Where a DA is sought to be amended, Council is required to fulfil some statutory requirements. It must determine whether to accept the submission of the amendment, and, if so, must decide, e.g., whether or not re-notification or re-advertising of the proposal is required, a question which would depend on whether the amendment involves additional environmental impacts (Tp2, LL33 – 36).

Relevant Provisions

The Court Act

7. Section 39 of the Land and Environment Court Act 1979 (“the Court Act”) provides (some emphasis added):

Powers of Court on appeals

(1)   In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

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

...

(6A)   Notwithstanding any other provision of this section, if an appeal relates to an application made to a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and the application relates to integrated development within the meaning of section 91 of that Act:

(a)   the Court may determine the appeal whether or not the consent authority has obtained the general terms of approval of each relevant approval body within the meaning of section 90A of that Act, and

(b)   the Court is not bound to refuse an application for development consent because an approval body has decided not to grant its approval or has failed to inform the consent authority whether or not it will grant its approval, and

(c)   the Court may determine the appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of an approval body.

...

The EPA Act

8. Section 4(1) of the EPA Act defines “development application” thus:

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

9. Section 80A of the EPA Act relevantly provides as follows (some emphasis added):

80A   Imposition of conditions

(1)   Conditions—generally a condition of development consent may be imposed if:

(a)   it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or

(b)   it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 10 in relation to the land to which the development application relates, or

(c)   it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or

(d)   it limits the period during which development may be carried out in accordance with the consent so granted, or

(e)   it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or

(f)   it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or

(g)   it modifies details of the development the subject of the development application, or

(h)   it is authorised to be imposed under section 80 (3) or (5), subsections (5)–(9) of this section or section 94, 94A, 94EF or 94F.

...

(4)   Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following:

(a)   one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,

(b)   clear criteria against which achievement of the outcome or objective must be assessed.

...

10. Section 82 provides (my emphasis):

82   Circumstances in which consent taken to have been refused

(1) A consent authority that has not determined a development application within the relevant period, prescribed by the regulations, applicable to the development the subject of the development application is, for the purpose only of section 97, taken to have determined the application by refusing consent on the date on which the period expires.

(2) Nothing in subsection (1) prevents a consent authority from determining a development application after the expiration of the relevant period referred to in that subsection, whether on a review under section 82A or otherwise.

(3) A determination pursuant to subsection (2) does not, subject to subsection (4), prejudice or affect the continuance or determination of an appeal made under section 97 in respect of a determination that is taken by subsection (1) to have been made.

(4) If a determination pursuant to subsection (2) is made by granting consent, the consent authority is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal (being an appeal made under section 97 in respect of a determination that is taken by subsection (1) to have been made) withdrawn at any time prior to the determination of that appeal.

...

11. In Eco-Villages Australia Pty Ltd v Pittwater Council [2012] NSWLEC 49, Craig J discussed s 82 in some detail. His Honour said (at [46] – [51]):

46 Mr Galasso SC, who appeared on behalf of Eco-Villages, submits that where an appeal is brought under s 97 of the EPA Act, founded only upon the deemed refusal of a development application by a consent authority, the function of the Court when addressing an amendment to a development application differs from that which obtains when such an appeal is founded upon an actual refusal. In the latter case, the power of the consent authority to address any further aspect of the development application is spent. This has the consequence that it is only the Court, exercising its power under s 39(2) of the Court Act, that can agree to the amendment of a development application currently before the Court for determination.

47 However, s 82(2) of the EPA Act expressly preserves the power of the consent authority to determine a development application even after an appeal has been brought pursuant to s 97. He submits that the power to determine the application carries with it the power to agree to an amendment preceding that determination. I accept that submission as correct.

48 Clearly enough, the purpose of s 82(2) is to preserve the right of a consent authority to determine a development application when the power so to do has not been spent. That right, so it seems to me, carries with it the entitlement to exercise those functions that are incidental to the determination of the application.

49 The right to determine a development application carries with it the entitlement to grant consent subject to the imposition of conditions: ... [T]he effect of a determination made in exercise of the right preserved by s 82(2) may be that the development proposed by an applicant is altered ("amended") from that originally sought. The power to impose conditions of consent that have the potential to alter the development from that proposed by an applicant may be found in s 80A(1), paragraphs (a) and (g), and also in the provisions of s 80A(4). It would make no apparent sense to interpret s 82(2) as authorising the consent authority to alter the development proposed by the manner in which it frames its determination of the application yet denying to it the function of agreeing to an amendment of that application prior to making that determination.

...

51 ... An applicant for consent retains an entitlement to pursue the appeal even if the determination made is to grant development consent: s 82(4). These provisions do not speak against an agreement by the consent authority to an amendment of the development application prior to the determination able to be made pursuant to s 82(2).

12. Section 91 provides:

91   What is “integrated development”?

(1)   Integrated development is development (not being State significant development or complying development) that, in order for it to be carried out, requires development consent and one or more of the following approvals:

...

Water Management Act 2000 ...

13. Section 97(1) provides (emphasis added):

97   Appeal by applicant—development applications

(1) An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant’s development application (including a determination on a review under section 82A) may appeal to the Court within 6 months after:

(a)   the date on which the applicant received notice, given in accordance with the regulations, of the determination of that application or review, or

(b)   the date on which that application is taken to have been determined under section 82 (1).

(The six months period expressly legislated in s 97(1) cannot be extended by the Court: Simmons v Marrickville Council; Kababy Pty Limited v Marrickville Council [2012] NSWLEC 133, per Biscoe J.)

The EPA Regulation and the Council’s DCP

14. Part 6 of the Environmental Planning and Assessment Regulation 2000 (“the Regulation”) sets out “Procedures relating to development applications”, and Div 1 (cls 47 to 56) applies (cl 47) “to all development applications”, as defined in s 4(1) of the EPA Act.

15. Clause 50 defines how a DA “must ... be made”. Clause 51 provides for a consent authority to reject a DA in defined circumstances, and the DA is thereafter “taken ... never to have been made”. Clause 52 provides for a DA to be withdrawn. Clause 54 provides for a consent authority to request “additional information about the proposed development as it considers necessary to its proper consideration” of the DA.

16. Clause 55 provides the procedure by which a DA “may be amended or varied”, and the restrictions on such amendments.

17. My attention was drawn to no other clause dealing with amendments, but Council’s Development Control Plan 2012 (“the DCP”) provides (Exhibit R2, sec 1.3):

Amendment of an application prior to determination (under Clause 55 of the Regulation)

If an application is amended prior to determination, it will be re-notified/advertised if the amendments are considered to result in significant additional environmental impacts.

Any such re-notification/advertising period may be reduced to 14 days if the likely additional environmental impacts are considered to be minor.

18. Clause 55 of the Regulation provides (my emphasis):

What is the procedure for amending a development application?

(1)   A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined.

(2)   If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development.

(3)   If the development application is for:

...

(b)   integrated development,

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

19. In the present case, the concept of agreement/acceptance of amendments (cl 55(1)) is quite controversial, and, as Mr Lazarus said (Tp15, LL2 – 4), “agreement can't be remotely controversial. It must involve the essential or voluntary act. In this case, it is an agreement that the applicant is able to amend its development application”. (Despite his use of the expression “in this case”, he went on to note (LL8 – 15) that Council’s Mr Hand “did not consider this to be an amendment to the [DA]”.)

20. Division 3 of Part 6 (cls 65 to 70) deals with DAs “for integrated development” ([12] above).

21. Clause 66 provides:

Seeking general terms of approval

(1)   After it receives a development application for integrated development, the consent authority:

(a)   must forward a copy of the application (together with all accompanying documentation) to the approval body whose approval is required, and

(b)   must notify the approval body in writing of the basis on which its approval is required and of the date of receipt of the development application, and

(c)   if known at that time, must notify the approval body in writing of the dates of the relevant submission period if the application is to be publicly notified under section 79 or 79A of the Act.

(2)   In the case of a development application that indicates on its face that such an approval is required, the application must be forwarded to the relevant approval body within 14 days after the application is lodged.

22. Clause 67 provides for the “approval body” to seek additional information from the consent authority, which must seek it, in turn from the applicant (cl 67(3)), and provide it (cl 67(4)).

23. Clause 70 provides for “general terms of approval” to be provided to the consent authority, but does not commit the consent authority to the granting of consent (cl 70(2)).

24. Division 3A (cls 70A and 70B) makes special provisions in respect of DAs which meet the definition of “staged development applications” (s 83B). It is common ground that the present DA is not one.

25. Division 8 (cls 92 to 97A) deals with the “Determination of DAs”. Clause 95 deals with a “Deferred Commencement consent”; cl 96 with the imposition of conditions authorised by the s 80A concerning “ancillary” aspects of the development; cl 97 with any modification or surrender of a development consent (“DC”) – (s 80A), or existing use right (s 104A); and Div 8A (cls 98 to 98E) with “prescribed conditions of DC” (s 80A(1)).

26. Division 11 (cls 106 to 113B) deals with “Time within which DA procedures to be completed”. As the method of calculating relevant key periods is not in issue in the present case I need not set out cls 106 to 111. The so-called “stop the clock” procedure is dealt with by cl 112 which provides:

Consent authority to notify applicant that time has ceased to run

(1)   On the occurrence of each of the following events, namely:

(a)   a request by a consent authority for additional information under clause 54,

(b)   the receipt by a consent authority of a concurrence authority’s or approval body’s request for additional information under clause 60 or 67,

(c)   the receipt by a consent authority of a notice from the Chief Executive of the Office of Environment and Heritage under clause 68,

the consent authority must notify the applicant of the effect that this Division has on the various assessment periods to which this Division relates as a consequence of those events having occurred.

(2) If several events require notification under this clause, a single notification referring to each of those events is sufficient.

Note.

The object of this clause is to ensure that the applicant is kept informed as to when the various deadlines imposed by this Regulation occur in relation to the processing of his or her development application and, in particular, as to when any right of appeal may arise as a consequence of a deemed refusal of the application.

27. Clauses 113(1) and (2) of the Regulation then provide (some emphasis added):

Applications taken to be refused

(1) For the purposes of section 82 (1) of the Act, a development application is taken to be refused if a consent authority has not determined the application within the deemed refusal period, being:

(a)   40 days, except in the case of development referred to in paragraph (b) or (c), or

(b)   60 days, in the case of:

(i)   designated development, or

(ii)   integrated development (other than integrated development that, pursuant to State Environmental Planning Policy No 62—Sustainable Aquaculture, is Class 1 aquaculture development), or

(iii)   development for which the concurrence of a concurrence authority is required, or

(c)   90 days, in the case of State significant development.

(2)   The deemed refusal period is measured from:

(a)   the date the development application is lodged with the consent authority, or

(b) the date the Commission complies with clause 268V (3), if a review (with or without a public hearing) has been conducted by the Planning Assessment Commission into development other than development the subject of a development application to which section 97 of the Act does not apply, or part of any such development.

28. The concept of “lodging”, e.g., a DA, was the subject of close examination by the Queensland Supreme Court in Wall Street Enterprises Pty Ltd v Spooner [2009] 2 Qd R 392; [2009] QSC 28, particularly in the context of increasing use of technology. As the headnote records, the concept requires the “depositing” of a document in such a manner that the “depositee” initiates an official process by “some act or conduct” (see [27] – [41]).

29. In Ipoh Pty Ltd v Sydney City Council (“Ipoh”) (2005) 142 LGERA 373; [2005] NSWLEC 514, Pain J held (at [21]) that “lodged” in cl 113(2)(a) was intended to mean the date a DA was “lodged in its final form”. Her Honour considered that the aim of s 82(1) was served by that construction.

30. Had the Council refused the amendment in Ipoh – and, presumably, in the present case – the appeal period would be measured from the date of lodgement of the (original) DA. (I accept Her Honour’s purposive reasoning in Ipoh, even though it differs from my more textual approach in the earlier case Songkal Pty Ltd v Warringah Council (2000) 111 LGERA 71; [2000] NSWLEC 215.)

31. None of the balance of Part 6 of the Regulation would appear relevant to the present case.

32. Craig J’s decision in Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) (2013) 197 LGERA 238; [2013] NSWLEC 146 makes clear (at [68] – [69]) that the legislative scheme outlined above (notably ss 82(1) and 97(1), and cls 51, 54 and 113) govern the calculation of the “deemed refusal period”, which may serve to negate an entitlement to appeal. His Honour said (at [69]):

... those provisions ensure that there is a mechanism for determination of a development application where there is delay on the part of a consent authority beyond that period or those periods which the legislature has considered appropriate for the consent authority to have responded to or made a determination of a development application that has been lodged.

The Development and The Council

33. The DA in the present appeal (D/2014/1757) is for “integrated development” ([12] above), requiring consultation by Council with the State’s Office of Water, responsible for the Water Management Act 2000.

34. The Class 1 application documents filed in the Court occupy two volumes, which include the very extensive DA documentation. The DA was lodged with Council on 13 November 2014 (see Vol 1, tab 2).

35. A “deemed refusal” right of appeal in respect of that DA would arise on 14 January 2015 and expire on 14 July 2015.

The Proposal

36. The DA form (Vol 1, tab 1, fol 5) describes the development in these terms:

Integrated Development. Demolition of existing structures, tree removal, excavation, shoring, piling and construction of mixed use development (known as sites 10A, 10B and 11C) comprising 123 residential apartments and 440 sqm of retail within an eight storey building (building B) and a ten storey building (building A), basement car parking for 110 spaces, landscaping and open space works, construction of part Hinchcliffe Street and land subdivision of 3 lots into 2 lots plus road widening.

37. The Class 1 application to the Court describes the proceedings as:

Appeal against the Respondent’s deemed refusal of development application D/2014/17570 lodged on 13 November 2014, and amended on 13 April 2016, for demolition of existing structures, tree removal, excavation, shoring, piling and construction of mixed use development (known as sites 10A, 10B and 10C) comprising 123 residential apartments and 440sqm of retail within an eight storey buildings (sic) (building B) and a ten storey building (building A), basement car parking for 110 spaces, landscaping and open space works, construction of part Hinchliffe (sic) Street and land subdivision of 3 lots into 2 lots plus road widening

38. The Statement of Environmental Effects which accompanied the DA (“SEE” – Vol 1, tab 3) contains (fols 5, 13, and 14) the following (my emphasis):

This Statement of Environmental Effects (SEE) is in relation to the redevelopment 501-509 and part of 511-515 Botany Road, Zetland and includes development sites known as 10A, 10B and 11C identified within Green Square Town Centre (GSTC).

The application, located towards the south-western end of GSTC, includes two buildings connected below ground level through a single basement of three (3) levels. The northern building on site 10A will be ten (10) storeys and the building located across sites 10B and 11C will be eight (8) storeys. Both buildings include retail space fronting Botany Road.

Also included in the application are works which form part of a Voluntary Planning Agreement, including construction of the western part of Hinchcliffe Street as it relates to the site.

...

It is noted that a separate Development Application (Reference No. D/2013/1947) has been approved for the demolition of existing structures on 511 to 515 Botany Road, and staged construction of Sites 11A,11B and 11C comprising 308 residential apartments and 335m² of retail in three (3) buildings, a single two (2) level basement car park and associated landscaping. The DA also includes construction of Sonny Leonard Street, extension of the eastern side of Hinchcliffe Street to the south-west and pedestrian access from Emanuel Lane through to Hinchcliffe Street. Both properties are to be developed by Lateral Estate.

It is noted that the proposed southern part of Building B under this DA, is located across Site 11C. The subject DA seeks to supersede the consent granted for Site 11C under Development Application No. D/2013/1947.

The proposal seeks to combine sites 10B and 11C so that they contain one (1) building rather than two (2) skinny buildings. This is a better outcome in terms of streetscape and aesthetic form and is a more efficient and economic use of the land parcels, in accordance with the objectives of the EP&A Act 1979.

Demolition and construction is to be staged as follows:

•   Stage 1   Demolition of all structures above and below ground, and tree removal

•   Stage 2   Excavation, shoring and piling works

•   Stage 3   Construction of basement levels 1-3

•   Stage 4   Construction from ground to roof levels

Construction of Buildings A, B and C as three (3) distinct stages is consistent with the Voluntary Planning Agreement.

It is requested that future conditions of development consent have regard to, and where relevant are linked to, one of the abovementioned stages.

39. The various nominated development sites are clearly identified on a plan in the SEE (fol 11).

40. The SEE also notes (fol 15, par 4.1):

4.1   Integrated Development

As the development involves excavation that is likely to require the temporary de-watering of the Site, it is therefore defined as "Integrated Development" under Section 91 of the Environmental Planning and Assessment Act 1979. An approval for dewatering under Section 91 of the Water Management Act 2000 will be required. General terms of Approval will be provided by the NSW Office of Water.

The Council

41. On 10 August 2015, Council’s “Major Development Assessment subcommittee” (“the Council Committee”) reviewed an assessment report on that DA, dated 4 August 2015 (Exhibit R1), and, by Council resolution, the DA was delegated to Council’s CEO for determination, “subject to certain preconditions” (see Rosemary Bullmore’s affidavit 1 December 2016, par 3e).

42. The report which was presented to the Council Committee (Exhibit R1) summarises the proposal (in part) thus:

Application for the demolition of existing structures and the construction of 2 residential flat buildings mixed use buildings on Sites 10A, 10B and 11C in the Green Square Town Centre.

Buildings A and B comprise residential flat buildings with 123 residential apartments, 440sqm of retail floor space at ground level and mezzanine floor level and a 3 level basement car parking that will accommodate 110 parking spaces. The proposal also includes the subdivision of Lot 2 in DP 505350, Lot 11 in DP 610938 and Lot 12 in DP 610938.

...

The proposal is considered to generally perform well against the relevant amenity controls contained in State Environmental Planning Policy No.65, the Residential Flat Design Code and the Green Square Town Centre Development Control Plan 2012.

The proposed southern portion of Building B under the subject development application is located on Site 11C, part of 511-515 Botany Road. In October 2014, the Central Sydney Planning Committee (CSPC) granted consent to a development application for 511-515 Botany Road, including Site 11C.

The subject application seeks to supersede the operable development consent D/2013/1947 affecting Site 11C (part of 511-515 Botany Road, Zetland).

A requirement of the approval is that the applicant must surrender an existing operable development consent (being D/2013/1947) prior to the determinant (sic) of the subject application. The applicant has not formally surrendered this development consent.

43. The Council Committee recommended (in summary, p2 of Exhibit R1) that Council:

... consider the merits of this application and delegate the decision to determine the application to the Chief Executive Officer upon completion of the Deed of Variation (amendment to the Planning Agreement) exhibition process and the surrender of the previous consent for Site 11C only under D/2013/1947.

44. The recommended resolution (in detail, pp4 –5 of Exhibit R1) was that:

(A)   the variation sought to Clause 4.3 building height in accordance with Clause 4.6 of the Sydney Local Environmental Plan 2012 be supported;

(B)   authority be delegated to the Chief Executive Officer (CEO) to determine Development Application No. D/2014/1747, after:

(i)   The Draft Deed of Variation of the Voluntary Planning Agreement for 501-509 Botany Road, Zetland (GMNT Properties) is publicly exhibited and any submissions considered; and

(ii)   The surrender of development consent D/2013/1947 in relation to Site 11C has been completed.

(C) if the CEO determines to approve Development Application No. D/2014/1757, then pursuant to Section 80(3) of the Environmental Planning and Assessment Act 1979, consideration be given to granting deferred commencement consent, subject to the following:

(1)   DRAFT DEED OF VARIATION OF PLANNING AGREEMENT

Prior to activation of this consent:

(a)   The Draft Deed of Variation of Planning Agreement for 501-509 Botany Road, Zetland (Reference XXXX), prepared by Council and placed on public exhibition on XXXX 2015, shall be executed and submitted to Council;

(b)   The Draft Deed of Variation of the Planning Agreement for 501-509 Botany Road, Zetland, as executed, must be registered on the title of the land in accordance with the Planning Agreement.

(2)   SURRENDER OF CONSENT D/2013/1757

The surrender of development consent D/2013/1947 in relation to Site 11C has been completed.

(D)   in determining the application, the CEO consider the draft conditions of consent, as shown in Schedules 1A, 1B, 1C, 1D and 2 and 3 below, and any other relevant conditions;

•   evidence that will sufficiently enable Council to be satisfied as to those matters identified in deferred commencement conditions, as indicated above, must be submitted to Council by within 24 months of the date of this determination;

•   the consent will not operate until such time that the Council notifies the Application (sic) in writing that deferred commencement consent conditions, as indicated above, have been satisfied; and

•   upon Council giving written notification to the Applicant that the deferred commencement conditions have been satisfied, the consent will become operative from the date of that written confirmation, subject to the following conditions of consent: ...

45. The report included the following comments (in pars 95, and 101 to 105):

PUBLIC INTEREST

95.   It is considered that the proposal will have no detrimental effect on the public interest, subject to appropriate conditions being proposed.

...

CONCLUSION

101.   The proposal is generally consistent with the objectives, standards and guidelines of the relevant planning controls including the Sydney Local Environmental Plan 2013 (Green Square Town Centre - Stage 2), the Green Square Town Centre Development Control Plan 2012 and SEPP 65.

102.   The proposal has been subject to a competitive design process. The proposed building adopts a high quality architectural language and building expression is consistent to the winning competition design and will achieve design excellence.

103.   The assessment recognises that the proposed height of Building A departs from the maximum height control and a clause 4.6 exception to the Sydney LEP 2013 (Green Square Town Centre - Stage 2) height standard is considered acceptable in this circumstance.

104.   The proposed development is considered to be appropriate within its setting and is generally compliant with the relevant planning controls. It is an important contribution to private residential development within the Green Square Town Centre and includes the delivery of high quality public domain, in line with the vision for Green Square.

105.   It is recommended that Council consider the merits of the application and delegate the decision to determine the application to the CEO once the draft Deed of Agreement to amend the Voluntary planning (sic) Agreement has been exhibited.

46. The Council resolution (according to Bullmore’s Annexure “A”) was in the following terms:

ITEM 9.10

DEVELOPMENT APPLICATION: 501-509 BOTANY ROAD ZETLAND AND 511-515 BOTANY ROAD ZETLAND (D/2014/1757)

It is resolved that:

(A)   the variation sought to Clause 4.3 building height in accordance with Clause 4.6 of the Sydney Local Environmental Plan 2012 be supported;

(B)   authority be delegated to the Chief Executive Officer (CEO) to determine Development Application No. D/2014/1747, after:

(i)   The Draft Deed of Variation of the Voluntary Planning Agreement for 501-509 Botany Road, Zetland (GMNT Properties) is publicly exhibited and any submissions considered; and

(ii)   The surrender of development consent D/2013/1947 in relation to Site 11C has been completed.

(C) if the CEO determines to approve Development Application No. D/2014/1757, then pursuant to Section 80(3) of the Environmental Planning and Assessment Act 1979, consideration be given to granting deferred commencement consent, subject to the following:

(1)   DRAFT DEED OF VARIATION OF PLANNING AGREEMENT

Prior to activation of this consent:

(a)   The Draft Deed of Variation of Planning Agreement for 501-509 Botany Road, Zetland (Reference XXXX), prepared by Council and placed on public exhibition on XXXX 2015, shall be executed and submitted to Council;

(b)   The Draft Deed of Variation of the Planning Agreement for 501-509 Botany Road, Zetland, as executed, must be registered on the title of the land in accordance with the Planning Agreement.

(2)   SURRENDER OF CONSENT D/2013/1757

The surrender of development consent D/2013/1947 in relation to Site 11C has been completed.

(D)   in determining the application, the CEO consider the draft conditions of consent, as shown in Schedules 1A, 1B, 1C, 1D and 2 and 3 of the subject report, and any other relevant conditions;

•   evidence that will sufficiently enable Council to be satisfied as to those matters identified in deferred commencement conditions, as indicated above, must be submitted to Council by within 24 months of the date of this determination; ...

47. Council issued no “stop the clock” letter (see [26] above), so the 60 days deemed refusal period applicable to the lodged DA would expire, as earlier noted, on 14 January 2015, and the time for a “deemed refusal” appeal to the Court would expire on 14 July 2015.

48. As also already noted ([9] above), s 80A of the EPA Act grants power to a consent authority to impose conditions on a development consent.

49. In its very comprehensive assessment report (Exhibit R1), the Council Committee proposed a set of 157 Council conditions (in schedules 1A, 1B, 1C and 1D), other “prescribed” conditions (in schedule 2), and some 17 “general terms of approval” proposed by the Office of Water (in schedule 3), all of which conditions might be attached to any consent granted by Council’s delegate (see “(D)” quoted in [46] above).

50. On 1 March 2016, Mr Benjy Levy, Development Manager of the applicant, emailed to Mr Russell Hand, Senior Planner Planning Assessments of the Council, a marked-up, amended version of the Council’s suggested conditions, saying in his email (Vol 2, tab 30):

Russell

Please find attached draft conditions incorporating staging.

Happy to meet and discuss should it assist.

Regards.

51. That email mentioned in its header that it had an attachment, which it described as “501 Botany Rd proposal condition staging.pdf”. The attachment included the marked-up draft conditions.

52. Many of Levy’s proposed changes were to specify or clarify the “stage” at which requirements, as to documentation or payments, were to take effect (see draft conditions (2), (4), (9), (10), (15), (17), (21), (30), (34), (37), and (51) in Schedule 1A; and (58), (61), (63), (66), (69), (74), (77), (87), (88), (101), (103), (115), (116), (117), and (118) in Schedule 1B).

53. Two draft conditions ((97) and (100)) were “struck through” in their entirety: (97) was a “standard condition” (re photographic archival documents) which the applicant contended “should not apply to this consent as the buildings on the site are of absolutely no significance”; and (100) required dedication of land “to the applicable energy supplier ... to enable an electricity substation to be installed”, but the applicant indicated that such energy issues had already been covered otherwise.

54. On 30 March 2016, Levy emailed Hand again (tab 31), saying:

Dear Russell

Further to our ongoing communication regarding the draft consent for 501 Botany Road (D/2014/17570), please find attached letter regarding the draft deferred commencement condition.

The proposed plans outlined in the letter are in the process of being drafted and will be forwarded to you next week.

I look forward to meeting with you on this and related matters. If you have allocated this project to another planner, please advise.

Regards.

55. Attached was a letter of advice, dated 30 March 2016, from Mills Oakley (also included in tab 31).

56. On 13 April 2016, Hand replied to Levy in these terms (Vol 2, tab 32):

Hi Benjy,

We are having internal discussions with our Legal Unit on the question of the partial surrender of a consent.

The staging of the conditions has been done before as a CEO delegation matter and I will have to go through each mark-up of yours closer to the time we are ready to determine.

I will get back to you after the legal discussions have concluded.

Regards.

57. As Mr Lazarus, for the Council, notes in his written submissions (par 10):

No further steps were taken to assess the applicant’s comments on the draft conditions, and in particular those comments were not referred to the relevant approval body, the NSW Office of Water. The respondent did not consider the comments to constitute an amendment to the DA.

He added to this submission orally (Tp15, LL11 – 14):

Nor did we form any view as to whether the application should be renotified or readvertised because of the purported amendments to the development application.

The Class One Appeal

58. As already noted, the Class 1 appeal was filed on 11 November 2016, and received by Council on 16 November 2016 (Bullmore, par 4).

59. Bullmore spoke to the applicant’s solicitor, Aaron Gadiel, by telephone, and wrote to him, on 22 November 2016. Their respective affidavits give differing accounts of what was said in the telephone conversation, but Council now accepts Gadiel’s version as more accurate (T8.12.16, p3, LL3 – 11). He deposes in this regard (pars 5 and 6):

5.   I actually said words to the effect that:

The plans are not the amendment, the amendment is the Applicant’s submission as to the staging of the development. These amendments were agreed to in the Council officer’s email of 13 April 2016.

6.   I definitely recall using the word ‘submission’ and definitely did not use the word ‘comments’. I did not use the name of the Council’s officer as I did not remember it when I was speaking to Ms Bullmore.

60. Bullmore deposes (par 10):

Mr Russell Hand informed me that he did not:

a. treat the Applicant’s comments on draft conditions (sic) an amendment to the DA under cl55 of the EP&A Regulation and did not refer the comments to the NSW Office of Water; or

b.   consider the comments a change to the development proposed by the DA.

61. Bullmore corresponded with Gadiel (see Annexures B and C to her affidavit), seeking to clarify the applicant’s claim of having amended the DA. On 30 November 2016 (Annexure C, p1), she said to him:

If the Applicant does not confirm by midday tomorrow that it will withdraw the Class 1 Application or otherwise discontinue the proceedings, we will file and serve a notice of motion tomorrow afternoon.

62. The NOM now before the Court was filed on 1 December 2016, and came before me as Duty Judge on 8 December 2016.

63. The parties relied on the two volumes of DA/Class 1 documents. They relied also on written submissions, and the competing affidavits of Bullmore and Gadiel. Council also tendered the two exhibits (R1 and R2) to which I have already referred, in support of the NOM.

Consideration

64. Clearly there was ongoing discussion and correspondence between the parties while the DA was before Council (see [54] above), and it is very common, and in no way improper, for such dialogue to continue after one party has commenced proceedings.

65. However, the applicant contends in this case (a) that a particular communication, namely the Levy email of 1 March 2016 ([50] above), constitutes an amendment of, or a request to amend, the lodged DA, and (b) that it was accepted as such by Council, by virtue of Hand’s reply of 13 April 2016 ([56] above).

66. Mr Lancaster argues that an effective amendment was validly made to the DA, because Council accepted it, and that the time for appeal runs from the effective date of lodgement of that amended DA (namely 13 April 2016). He says (subs par 21):

... It is clear enough that substantial changes were wrought to the development application by the allocation or re-allocation of particular works and obligations to particular stages of the development. The distinction sought to be made by the Council ... (‘proposing amendments to draft conditions is not the same thing as amending a development application’) is elusive and unsupported by authority.

67. He relies on cl 55(2) to support an argument that (par 27):

... even in cases in which alterations to proposed conditions of consent do not result in a “change to the proposed development”, the Regulation makes it clear that such alterations remain appropriately described as an “amendment or variation” of the development application.

(see also Tp25, LL6 – 37)

68. On his case, the applicant could validly file its appeal any time prior to, or on, 14 December 2016.

69. The Council puts its case for summary dismissal on nine bases (subs 16 to 24).

70. It argues, essentially, that “deemed refusal” appeal rights simply cannot be re-enlivened by correspondence between the parties regarding proposed conditions of consent. Appeal rights can be reinstated only when the DA is validly amended. Dialogue on possible conditions of consent cannot constitute an amendment of a DA, because the amendment process requires of an applicant “a certain level of formality” and specificity, which triggers an appropriate formal/technical response by the consent authority, namely acceptance of its lodgement, as a DA “in its final form” (Ipoh).

71. Council submits (par 19):

In this case, it cannot be said that the amendment application was accepted by the respondent; and nor could the application be said to be in final form, in the sense that no further amendments could be contemplated.

72. In V’landys v Land and Environment Court of NSW (“V’landys”) (2012) 193 LGERA 47; [2012] NSWLEC 218, a Commissioner of the Court had upheld an appeal by applicants (the Dives) against a Council refusal of a DA.

73. The Commissioner imposed conditions which included changes to the original plans, but an objector (V’landys), who later brought prerogative relief proceedings in the Supreme Court, was not notified of the changes until the hearing before the Commissioner.

74. The prerogative relief proceedings were transferred to this Court for hearing, and Biscoe J held that the conditions which the Commissioner had imposed did not “significantly alter” the original DA, and so did not offend the principle in Mison v RandwickMunicipal Council (“Mison”) (1991) 23 NSWLR 734; (1991) 73 LGRA 349. His Honour also rejected the objector’s claim that he was denied procedural fairness.

75. Importantly for present purposes, His Honour considered how a development the subject of a DA might come to be changed, before or at the time of consent.

76. His Honour identified three ways of effecting changes, and set them out (at [87]) in these terms:

(a) The first way is by an amendment to the development application. The applicant may amend with the agreement of the consent authority or, on appeal, with the leave of the Court: cl 55 EPA Regulation; Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155, 145 LGERA 292 at [3] per Jagot J. Section 97B of the EPA Act recognises that the Court has a discretion whether or not to allow the filing of an amended development application because if the Court does so, then (unless it is a minor amendment) it is mandatory for the Court to order the applicant to pay the consent authority's resultant costs thrown away.

(b) The second way is by granting development consent subject to a condition (s 80(1)(a) EPA Act) that changes the proposed development, provided the condition does not offend the Mison principles as explained in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23, 143 LGERA 277: ... On an appeal the consent authority usually proposes a large number of conditions to the Court. In the present case, the applicants for consent (the Dives) also proposed some conditions.

(c) The third way is by granting partial consent. Development consent may be granted for the development for which consent is sought except for a specified part or aspect of the development, or only for a specified part or aspect of the development: s 80(4) EPA Act ...

77. His Honour added (at [88], [105] and [109]):

88   The first of these three ways is dependent upon action by the applicant for consent, in that the applicant applies for and obtains the agreement of the consent authority to amend the development application or, on an appeal, applies for and obtains the leave of the Court to amend. The second and third ways are dependent upon action by the consent authority or, on appeal, the Court, whatever the applicant's wishes. ...

...

105   The changes in the present case pale in significance compared with the potential height change in Mison. ... [M]y evaluation is that the changes brought about by the conditions do not significantly alter the development so as to result in a significantly different development. My impression is that the conditions only modify details of the development, which is permissible under s 80A(1)(g) of the EPA Act. ... I think that the conditions were also permissible under s 80A(1)(a) as relating to matters in s 79C(1)(a)(i), (b) and (d) (the provisions of an environmental planning instrument, likely impacts of the development, and submissions made by Mr V'landys).

...

109   ... [L]eave to amend the development application was neither sought nor granted at the hearing. The Dives' solicitor said he was not seeking to amend and the Commissioner ruled that there was no amendment. Rather, the Dives proceeded, as did the Council, towards the second way of effecting changes by proposing conditions that the Commissioner later adopted.

78. His Honour emphasised (in [106]) his conclusion that no amendment had been made to the DA in that case

79. Council accepts that a DA and any amendment may be “transmitted electronically”, so no exception can be taken to the submission of suggested conditions by email.

80. To the extent that the applicant relies upon cl 55 of the Regulation, Council submits that the applicant must demonstrate that the conditions it proposed in its email of 1 March 2016 “amounted to an amendment or variation of the DA” (par 20). Staging was proposed in the SEE, and the applicant’s version of the Council Committee’s suggested conditions better reflected that staging. Council says that:

By proposing amendments to the draft conditions, the applicant was simply ensuring that what had previously been proposed (as part of the DA) would in fact be implemented.

81. V’landys acknowledges that a condition of DC may lawfully modify details of the development in the DA, but Council submits that, in so doing, the DA itself is not necessarily amended. The development is defined by the DA, and not by conditions of consent (subs par 21, and Olsson v Goulburn Mulwaree Council & the Minister Administering The Crown Land Act 1989, Olsson v The Minister Administering The Crown Land Act 1989 (2010) 176 LGERA 71; [2010] NSWLEC 169, at [26] per Craig J).

82. I accept the Council’s proposition that the statutory regime I outlined above is designed to establish “carefully defined time limits” (par 22), and would be “completely undermined” if “any correspondence between an applicant and a council concerning the proposed development would arguably re-start the deemed refusal period” – either side could manipulate the timings. (See Tp14, LL29 – 39.)

83. The DA could be amended only with Council’s agreement, and I do not accept the applicant’s contention that Hand’s email of 13 April 2016 ([56] above) amounted to Council’s accepting the conditions email as an amendment to the DA. An indication of intended further examination of the proposals concerning Council’s conditions does not satisfy the requirement of such “agreement”.

84. As Mr Lazarus said (Tp14, LL21 – 25):

Rather, what is happening is, in accordance with the second of the pathways identified by Biscoe J that there is negotiation as to the proposed conditions of consent which may have the effect once the development is approved or the development application is approved of modifying the development.

85. I find that what the applicant was proposing here was that the Council amend the conditions it intended imposing, to better fit the SEE, and ensure that any approval would reflect the application (Tp27, LL44 – 47). The applicant proposed amendments not to its DA proposal, but to a Council proposal (Tp28, LL3 – 6). The applicant’s email did not engage cl 113. As Mr Lazarus pointed out (Tp28, L41 – p29, L13), debating conditions is a s 80A function, not a cl 55 function. The applicant opted for the second V’landys pathway, but now says it wants the first (see [76] above).

86. The applicant did not in any way make clear to Council that it was seeking to amend the DA, and the notations on the mark-ups do not amount to the necessary “written particulars” of some “changed development” (Council’s subs pars 23 and 24, and see also Tp25, LL30 – 37). The particulars provided were of changes suggested to proposed conditions, not changes to the applicant’s proposed development (Tp29, L41 – p30, L9).

87. As Bignold J said in Ervin Mahrer & Partners v Strathfield Municipal Council (2001) 115 LGERA 259; [2001] NSWLEC 140 (at [85] – [86]):

85   ... 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. ...

...

86 ... 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.

88. As Mr Lazarus said (Tp12, LL41 – 44):

... we didn't refuse the amendment; we didn't accept the amendment; that's because we didn't know that what was said to be amendments to draft conditions was an application to amend the development application.

89. Clearly some subjective factors are involved in Council’s reaction to such a communication, and I reject Mr Lancaster’s rather exaggerated submission to the contrary (Tp24, LL25 – 35, c.f. Tp29, LL24 – 31).

90. Mr Lancaster also argues (pars 23 – 24) that as the “substance” of the mark-ups was an application for the proposed development to be approved on those conditions, it amounted to an amendment of the DA, regardless of any question of “form”. He cites (in par 24) Eco-Villages (at [49]) in support. I have set out most of par [49] (in [11] above), and I do not find it supportive of Mr Lancaster’s submission. He also dismissed as obiter the distinction drawn by Biscoe J in V’landys at [109] (see [77] above, and Tp23, LL12 – 21). Obiter it might be, but persuasive it remains.

91. Likewise, I cannot accept the applicant’s submission (par 25) that the Council email of 13 April 2016 “indicates an intention ... to consider and determine the application on the basis of the marked-up conditions”, such that Council was agreeing to accept the amended DA. Contrary to what he says (in par 26), my views are not affected by the fact that the alleged amendment was put forward only after (c.f. Ipoh) the “deemed refusal” period for the DA had expired.

92. Mr Lancaster also argues that the conditions as proposed by the applicant did more than mirror the SEE staging of the project. He says (Tpp18 – 19) that “significant change” and “change of real substance” were made “to the way the development was to proceed”: significant financial obligations were deferred, changes were made to the excavation of the car park, and also to the requirement to dedicate land for an electricity substation. (See also Tp22, LL30 – 37.)

93. A specific form is not prescribed for an amendment to a DA, but it must be made clear to the consent authority that an amendment is proposed. Only then can the consent authority agree to allow the amendment, and do whatever else it is obliged to do, and only then can “deferred refusal” rights arise again. As Mr Lancaster himself said (Tp23, LL46 – 50), the statutory regime allows that to occur, and it is “not absurd or inconvenient”, but a “second deemed refusal period would only arise in a situation which (sic) the council accepts an amended development application”.

Conclusion

94. There is no amended DA, so the Class 1 appeal is out of time.

95. The Council’s Notice of Motion is upheld, and the Court orders that the proceedings be dismissed.

96. At the request of the parties (email 6 February 2017), costs are reserved, with liberty granted to the parties to apply within 14 days to restore the matter to the list on the question of costs.

97. Exhibits R1 and R2 may be returned to the respondents, and the two volumes of “Class 1 application” documents to the applicant.

**********

Decision last updated: 08 February 2017