Michael Ball Architects Pty Limited v Woollahra Municipal Council

[2003] NSWLEC 58

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Land and Environment Court

of New South Wales

CITATION:	Michael Ball Architects Pty Limited v Woollahra Municipal Council [2003] NSWLEC 58
PARTIES:	APPLICANT: Michael Ball Architects Pty Limited RESPONDENT: Woollahra Municipal Council
FILE NUMBER(S):	10961 of 2001
CORAM:	Bignold J
KEY ISSUES:	Practice and Procedure :- Leave to rely upon amended plan at s 34 Conference
LEGISLATION CITED:	Land and Environment Court Rules Part 13 r 16
CASES CITED:
DATES OF HEARING:	27/03/2002
EX TEMPORE JUDGMENT DATE :	03/27/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr J Strati, Solicitor SOLICITORS Strati & Kam RESPONDENT: Mr M Connell, Solicitor SOLICITORS Michell Sillar

JUDGMENT:

IN THE LAND AND

Matter No. 10961 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

27 March 2002

MICHAEL BALL ARCHITECTS PTY LIMITED

Applicant

v

WOOLLAHRA MUNICIPAL COUNCIL

Respondent

JUDGMENT

1. This is an application by Motion pursuant to Rules of Court, Part 13, Rule 16b(1) that the Court grant the Applicant leave to rely upon an amended plan referred to in the Motion. The Motion relates to a pending class one development appeal against the Council’s refusal of an application for a carport to be erected at the street boundary of property known as No 6 Magney Street, Woollahra. The appeal against the Council’s decision was filed on 26 November 2001, and on 15 January 2002, it was set down for a s 34 on-site conference to be held on 19 April 2002. Apparently the parties have agreed in advance that at such conference an adjudication on the matter, the subject of appeal, would be accepted by both parties.

2. The Motion today, is opposed by the Council principally I think, as I understand the argument, upon the grounds that the amended plan was itself the subject of a second development application made on behalf of the owner of No 6 Magney Street, Woollahra, to the Council after the Council had refused the original development application but before the Applicant had appealed against that decision. In effect, the Council submits that what the Applicant is doing is that he is seeking to appeal against a second development application and is reaching that result by way of seeking an amendment of the plan that accompanied the first development application. The amended plan retains the same development in concept, namely, a small carport at the frontage of the property, where obviously space is very confined. The property is in a Conservation Area and the Council’s decision refusing the application noted as its reasons that the proposal was unacceptable and an intrusive element within the streetscape, being inappropriate in the heritage Conservation Area and not consistent with the Council’s facade policy.

3. The original proposal showed the carport structure to have, at its frontage, a double panel lift door of timber construction and the supporting pillars were of brick construction. The amended plan retains the same dimensions (as I say the space available is extremely minuscule) but eliminates the front panel door and leaves the front open and combines a timber pillar at the higher level from the lower element which is brick conformably to the front fence on the property. The only other change is that timber panel gates are to be installed at the rear of the carport. The Applicant’s Solicitor submits that in all of the circumstances, considerations of fairness should allow him to substitute the amended plan for the original plan pointing out that the development is essentially unchanged and that no prejudice would be caused to the Council or the community if the Applicant were allowed to rely upon the amended plan.

4. The Council stoutly resists the first proposition pointing out that it has a spent considerable amount of money in preparing for the defence of the first appeal and that money is apt to be wasted if the Council is required to cope with an amended application at the conciliation conference which is listed for 19 April.

5. There were nine objectors to the original proposal but no objectors to the second proposal. I should also note that the second application was refused by the Council in February 2002 on grounds almost identical with the grounds that I have earlier mentioned which were advanced in support of the original determination. As I have said, Council asked me to refuse the application on the ground that, in effect, the Applicant is now seeking to substitute for the original appeal, an appeal against the second decision at the Council. The Applicant’s Solicitor, on the other hand, says that considerations of fairness ought allow him to rely upon the amended plan and points out that the second application was made at a time when it was beyond the Council’s capacity to approve an amendment to the original proposal because the original decision had been a refusal of that application.

6. The Applicant put in a second application designed to overcome much of the opposition evidently raised by objectors to the original proposal and also to give the Council a chance to approve a second application without the for an appeal to the Court. All this is documented in letters exchanged between the respective Solicitors for the parties.

7. In all of the circumstances, I am of the opinion that considerations of fairness do warrant leave being given to the Applicant to rely upon the amended plan. This is particularly so in view of the fact that it is apparent that it came into existence in an attempt by the Applicant to overcome local opposition and the Council’s original refusal of the original application in the most efficient and economical way without involving Court process.

8. The fact that an appeal was lodged against the original decision after the second application had been lodged, but before it was determined is unexceptional and, no doubt, the Applicant took that course to preserve his position. Nonetheless, with the second application having been refused by the Council in February the Applicant soon thereafter notified the Council’s Solicitor that the Applicant wished to amend the application to rely upon the amended plan which plan happened to be the same plan that was submitted with the second application. I do not think that the Applicant, in so acting, has acted with any sense of impropriety either in his dealings with the Council or with his application to the Court today in the pending planning appeal. He set about on a course which could have given rise to an approval of the second application and, no doubt, cherished the aspiration that it would, because it obviously had been tailored to meet the objections raised by local opposition.

9. There is the question of whether the Council should be compensated for costs incurred in its preparation for the s 34 Conference on the original application and I think that the relief that I propose to grant today should leave open the possibility for the Council to make an application for costs thrown away. There has been some debate as to whether costs would be thrown away in the circumstances of this case but it is idle to speculate and the matter will ultimately have to be examined at the end of the day. By that, I mean after the present proceedings are concluded whereupon it will be open to the Council to make any application for costs thrown away if that is the end result. The Council has asked that the s 34 conference be put back beyond the fixture of 19 April but I think, in the circumstances, that that fixture which was fixed in January 2002 should be retained because the Council had been informed on 5 March 2002 that the Applicant was seeking to rely upon the amended plan and the Council had, only two or three weeks earlier, considered the second development application and refused it. It should be noted that in refusing it the Council exercised its powers to not accept the recommendations of its planning staff.

10. In the circumstances, and for the reasons I have given, I grant the relief claimed in paragraph 1 of the Notice of Motion that the Applicant filed on 18 March 2002 and I grant liberty to the Council to apply for any costs thrown away by virtue of the Applicant being allowed to rely upon the amended plan at the s 34 conference in lieu of the original plan. The exhibits can remain with the Court papers.