MacQuart v Sutherland Shire Council

[2012] NSWLEC 1119

Land and Environment Court

New South Wales

Medium Neutral Citation:	MacQuart & Anor v Sutherland Shire Council [2012] NSWLEC 1119
Hearing dates:	22 February, 27 April 2012
Decision date:	27 April 2012
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	Application to amend is dismissed
Catchwords:	Practice and procedure - Application to amend development application
Legislation Cited:	Civil Procedure Act 2005 Land and Environment Court Act 1979
Category:	Procedural and other rulings
Parties:	Andrew MacQuart and Sharon MacQuart (Applicants) Sutherland Shire Council (Respondent)
Representation:	Mr C Ireland (Applicants) Ms J Amy, Sutherland Shire Council (Respondent)
File Number(s):	11178 of 2011

EX TEMPORE Judgment

1. COMMISSIONER: By notice of motion the applicants are seeking leave to rely on amended plans in this appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Sutherland Council of an application for development consent. Development Application No. DA 11/0877 sought consent for the demolition of an existing dwelling at 69 Oyster Bay Road, Oyster Bay (the site) and the construction of a new dwelling.

1. There is currently on the south western corner of the site a small dwelling, and on the south eastern side of the site a relatively recently constructed garage. The development application proposed work to demolish and reconstruct the dwelling, and to construct a connecting link between the new dwelling and the garage, which was also to be altered and modified.

1. The development application was received by the Council on 12 September 2011 and refused on 4 November 2011. The applicants filed the present Class 1 appeal on 15 December 2011. The Council filed its Statement of Facts and Contentions on 10 January 2012, in which it contended that there were two matters in issue. The first issue was view loss, namely that the proposal results in an unacceptable view loss from the dwelling house at 67 Oyster Bay Road, Oyster Bay, across the site to the Georges River. The second contention related to visual intrusion, namely that the proposed development replaces existing views of landscaped elements and natural features on the site with built form, and that as a result there is an unacceptable level of visual intrusion of built form when viewed from the property at 67 Oyster Bay Road. The Council filed expert evidence in the form of a statement of evidence provided by Ms Debbie Pinfold on 8 February 2012.

1. The matter was set down in accordance with the requirements of s 34AA of the Land and Environment Court Act 1979 for a conciliation conference to commence on site on 22 February 2012. On that occasion the applicants were represented by an agent. The conciliation conference did not reach a resolution and was terminated. The hearing was adjourned to the Court, Ms Amy for the Council having foreshadowed that she would object to evidence being provided by the agent then acting for the applicants in his capacity as a town planner.

1. When the matter resumed in Court the applicants were represented by a legal practitioner who promptly sought an adjournment of the hearing on the basis that he had only just come into the matter and was not prepared to proceed further. The matter was adjourned to today, and further directions were made for progress of the matter. Those directions relevantly included a direction that the applicants were to file and serve any expert planning evidence on which they proposed to rely by 14 March 2012, and a direction that the respective experts confer at 9.00am this morning, or earlier if available. The reason for that timing was in part due to the absence on leave of Ms Pinfold, the expert for the Council. The directions further included a direction that the applicants file and serve their response to the Council's draft conditions by 20 April 2012.

1. The amendment sought by the applicants today comes in the form of amended plans dated 13 April 2012. The basis on which the applicants decided to request the amendment has been outlined this morning in submissions by their counsel, Mr Ireland. The background in short is that the applicants had retained Dr Richard Lamb to provide expert advice, and that he had not been able to support the original application; that Dr Lamb and Mr Ireland attended on the site on 12 March 2012; and from that point on the preparation of amended plans proceeded. Mr Ireland informs me today that there was a delay caused by the illness of the architect acting for the applicants.

1. There is some dispute as to when the amended plans were provided to the Council. The applicant has provided this morning a letter dated 18 April 2012 under which copies of relevant sheets of revised plans were provided. That letter states that the applicant would serve a full set of plans by Friday, 20 April 2012.

1. The Council's position, as stated by Ms Amy, is that a copy of the relevant sheets was received by email on 20 April 2012; that the full set of the plans was received when the notice of motion was served on 23 April 2012; and that the Council attempted to notify the neighbours by hand delivering copies of the plans on the evening of Monday, 23 April 2012.

1. Ms Amy has provided a response in the form of emails received from two of the objectors who gave evidence on the site view on 22 February 2012. One is from Mr Salim Azar, who is the owner of 63 Oyster Bay Road, one of the sites viewed on 22 February 2012. Mr Azar has said that the amended plans are rejected, as they will still be blocking what is left of water views.

1. The response from Mr Stefanic, the owner of 67 Oyster Bay Road is more lengthy. In short, Mr Stefanic advises Ms Amy that he and his wife are overseas and will not return until 28 April 2012. They express concern about the circumstances, and in particular express concern that what they describe as a substantially revised proposal has been submitted three working days before the Court hearing.

1. Mr Stefanic states:

In the absence of a fair opportunity to view, evaluate and seek advice on the amended proposal, we wish to reject in the strongest possible terms any negotiation or decision with respect to the reviewed proposal. We wish to reiterate the fundamental importance of maintaining a view corridor and we consider it imperative that all affected parties have an adequate opportunity to review any amended application in this context.

1. There have been a number of amendments made on the plans that are the subject of the application for amendment. The most substantive of the amendments proposed is that what was formerly a two level connecting element between the present garage and the location of the present dwelling has been reduced in height with the removal of a gallery, to be a single level. The plans identify that the reduction in height is from RL 21.98 to RL 18.80. The plans show that what is now proposed is a pitched roof above the connecting element of the proposed building. I note that the draft without prejudice Conditions of Consent provided by the Council in accordance with the directions of the Court, which were filed on 21 February 2012, included condition 7, which required relevantly the deletion of the then proposed first floor gallery between the eastern and western pavilions and the roof of the resultant single storey element between the two elements, the eastern and western pavilions, to have a maximum RL of 18.07 AHD.

1. The applicants' position, and the basis on which they are seeking leave to rely on the amended plans, is that these amended plans respond to the contentions raised by the Council, and the concerns expressed by the objectors relating to view loss. The applicants submit that the amendment entirely meets the view loss issue and that the amendment ought to be allowed.

1. Having attended the site on the view, and in particular having had the benefit of observing the site from the relevantly affected properties, with the assistance of height poles erected by the applicants' surveyor, I am less confident than the applicants that the amended plans entirely meet the view loss issue, and in my view that is a question that is still live in these proceedings and would require some further evidence and some further submissions. That is certainly the position of the objectors.

1. The applicants have flagged that if the amendment is allowed they would seek to rely on expert evidence in the form of a report provided by Dr Richard Lamb. I note that Dr Lamb is present in Court and is available to give oral evidence.

1. The Council opposes the application for amendment. The Council's position is that the amended plans raise issues that would require some further consideration and potentially expert evidence as to the form of the roof connecting the eastern and western pavilions, in particular whether it ought to be pitched or flat or some other roof form.

1. I am mindful of the requirement imposed upon the Court by s 56 of the Civil Procedure Act 2005 which is to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in dispute in these proceedings. I am mindful, too, that s 58 of the Civil Procedure Act 2005 requires that in deciding whether to make any order for the amendment of a document, or any other order for direction or management of proceedings, the Court must act in accordance with the dictates of justice. Those dictates of justice include, in relevant circumstances, the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities.

1. I am concerned that the issues in dispute were clear in the form of the Council's Statement of Facts and Contentions as early as January 2012, and that was certainly the position maintained in the course of the view on 22 February 2012. The applicants have provided some explanation for the delay in considering their position and moving to amend the plans, however I am not satisfied that the matter should have taken as long as it has to get to the point where the applicants are now seeking to amend the plans.

1. The matter is before the Court under s 34AA of the Land and Environment Court Act 1979, which is a procedure intended to permit the expeditious consideration and determination of matters that fall within the ambit of that provision. The Court's practice direction for Class 1 Residential Development Appeals (at [42]) alerts the parties, and all experts in the proceedings before the Court, that the residential development appeal application, and the residential development proposed in the application, should be as complete, and final, and suitable for assessment at the final hearing as is possible when the application is lodged. Paragraph [40] notes that leave will usually not be given to amendments that require either the vacation of the final hearing or the adjournment of the final hearing. Paragraph [42] notes that residential development appeals will not be adjourned generally, and in particular that applicants should usually be ready to proceed with their appeal when it is commenced. Paragraph [43] notes that proceedings usually will not be adjourned because of failure to comply with the practice note, or Court directions, or because of lack of preparedness for any attendance before the Court.

1. The applicants submit that the amendment ought to be allowed and the matter can proceed today, and that there is no need to hear further from the objectors who gave evidence on site on 22 February 2012. The applicants rely in that regard on the provision at part 1.b.1.5 of the Sutherland Shire Council Development Control Plan Chapter 12: Administrative Provisions, which states that where revised plans are submitted during the course of assessment and prior to the Council's or the Court's determination the revised plans are to be publicly exhibited "but only where the changes being sought intensify or change the external impact of the development to the extent that neighbours, in the opinion of Council, ought to be given the opportunity to comment".

1. In the context where the proposed amendment reduces the height of the connecting element of the proposed dwelling, but does not reduce it to the point identified by the Council in its proposed draft Conditions as being acceptable in terms of balancing the view loss issues and other matters, I am not persuaded that the objectors ought to be denied the opportunity to comment on what is presently before the Court if the amendment is allowed. It may well be that on further reflection it does meet the concerns which they expressed in their written submissions and on site, but it is simply not possible for me to know that at this point.

1. Having considered the factors that would point to allowing the amendment, which I consider to be that the amendment goes some way to addressing the concerns relating to view loss, flagged at a very early stage by the Council, against the lack of expedition which overall the applicants have shown in their preparation for this appeal and their conduct of it, and having regard to the submission on behalf of the Council that if the amendment is allowed the matter would require some further adjournment as there are additional issues raised by the proposed built form of the somewhat reduced ridge height, I am not persuaded that it is appropriate to allow the amendment at this late stage in the proceedings. Accordingly, I dismiss the notice of motion.

Linda Pearson

Commissioner of the Court

Decision last updated: 16 May 2012