Orico Properties Pty Ltd v Inner West Council

[2017] NSWLEC 90

Land and Environment Court

New South Wales

Medium Neutral Citation:	Orico Properties Pty Ltd v Inner West Council [2017] NSWLEC 90
Hearing dates:	28 June 2017
Date of orders:	21 July 2017
Decision date:	21 July 2017
Jurisdiction:	Class 1
Before:	Robson J
Decision:	See orders at [30]
Catchwords:	Practice and procedure; Class 1 appeal; amended application; application to rely upon amended plans; whether amendment constitutes fresh application
Legislation Cited:	Environmental Planning and Assessment Regulation 2000 (NSW) Land and Environment Court Act 1979 (NSW) Marrickville Development Control Plan 2011 (NSW) Marrickville Local Environmental Plan 2011 (NSW)
Cases Cited:	Australian Enterprise Holdings Pty Ltd t/as AEH Group v Camden Council [2010] NSWLEC 70; (2010) 173 LGERA 226 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; [1991] HCA 45 Dyldam Developments Pty Ltd v Holroyd City Council [2001] NSWLEC 204 Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 Khouri v Burwood Council and Anor [2001] NSWLEC 124 Pepperwood Ridge Pty Ltd v Newcastle City Council [2007] NSWLEC 19 Radray Constructions Pty Limited v Hornsby Shire Council [2006] NSWLEC 155; (2006) 145 LGERA 292
Category:	Procedural and other rulings
Parties:	Orico Properties Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: M Sonter, solicitor (Applicant) G Christmas, solicitor (Respondent)   Solicitors: Mills Oakley (Applicant) Apex Planning and Environment Law (Respondent)
File Number(s):	2017/00155848
Publication restriction:	No

Judgment

1. The applicant, Orico Properties Pty Ltd (‘Orico’), by Notice of Motion filed 14 June 2017, seeks leave to rely on amended plans and documents in these Class 1 proceedings which were commenced on 23 May 2017. The respondent, Inner West Council (‘Council’) opposes the application for leave to amend.

2. The issue before me is whether the proposed amendments to the development application can be made pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW) (‘EPA Regulation’).

Background

3. The Class 1 Appeal is brought against Council’s refusal of development application DA201600150 seeking development consent for demolition of existing structures and construction of a part 3 and part 6 storey mixed use development including 4 ground floor commercial tenancies, 5 live/work units, 63 dwellings and basement car parking at 63 Princes Highway, St Peters.

4. The development application was lodged with Council on 4 April 2016. In its Notice of Determination dated 28 November 2016, Council refused the application for the following reasons (‘Reasons for Refusal’):

1. The proposal is contrary to the objectives of the B7 – Business Park zone applying to the land and the objective of Clause 6.13 under Marrickville Local Environmental Plan 2011 in that the development does not provide limited residential development.

2. The proposed development exceeds the floor space ratio development standard under Clause 4.4 of the Marrickville Local Environmental Plan 2011 (MLEP 2011). The application was not accompanied by a Clause 4.6 Exception. Council therefore has no power to grant development consent.

3.   The design of development is inconsistent with State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP 65) and the Apartment Design Guide (ADG). In particular, the proposal does not provide adequate apartment sizes and bedroom dimensions for Unit G08, the ceiling heights for commercial tenancies 1 and 2 are insufficient. The design of the communal open space/deep soil area included poorly located trees on the edge of the deep soil zone and grass over the central part and positions the playground and seating hard stand area over the deep soil area.

4.   The proposal does not comply with Control C88 within Part 6.6.1 of Marrickville Development Control Plan 2011 in that the development does not provide a minimum of 60% of the total gross floor area for non-residential purposes within the portion of the building located within B7 – Business Park zone of the site.

5.   The proposal does not comply with Control C89 within Part 6.6.1 of Marrickville Development Control Plan 2011 in that the design and configuration of the live/work units G05, G06 and G09 do not mitigate against their replacement by residential functions.

6.   The proposed development is inconsistent with the desired future character, controls, and objectives for the St Peters Triangle Precinct (Precinct 9.25) contained in Part 9.25 of the Marrickville Development Control Plan 2011 as it fails to provide the required level of commercial gross floor area.

7.   The proposed development is contrary to the aims, objectives and design parameters under Part 5.1.4 of Marrickville Development Control Plan 2011, in that there is inadequate stepping of ground floor levels responding to the fall across the site. This results in residential entries, commercial frontages and waste rooms having undesirable, extensive use of steps, ramps and platform lifts to achieve access.

8.   The proposed development is contrary to Part 2.1 – Urban Design of Marrickville Development Control Plan 2011 in that the external materials and finishes are not of a high quality due to the reliance on painted and render finish.

9.   The proposed development does not satisfy part 2.10.16 – Vehicle service and delivery areas in that there is no access from the loading bay to the commercial units or to the residential lift lobbies, and the requirement for goods to be moved via the main vehicle entry ramps is not practical.

10.   The proposed development does not satisfy Part 2.20 of Marrickville Development Control Plan 2011 concerning waste management in that the doorway to the commercial waste area needs to accommodate 660L bins, the commercial garbage holding area is undersized and the vehicle stopping/access points are not identified.

11.   The application does not satisfy the requirements of State Environmental Planning Policy No. 55 – Remediation of Land in that it was not accompanied by a Detailed Site Investigation (DSI) to demonstrate that the site is suitable, or can be made suitable for the development.

12.   The development is considered unsatisfactory on traffic and vehicular access related grounds for the following reasons:

(i)   Short Street has a narrow carriageway and has on-street parking provided for residents on the opposite side of the roadway to the development. Short Street cannot provide suitable vehicle and truck access for the development with its current width while remaining a 2 way street.

(ii)   The development does not include splay corners on all levels at the intersection of Princes Highway and Short Street, to ensure sight lines to both traffic and pedestrians are adequate.

(iii)   The Traffic and Parking Impact Assessment report submitted with the application did not address the impacts associated with the likely increase in the number of two way traffic movements in Short Street as a result of the development.

13. Insufficient or incomplete information was submitted with the application to enable a proper assessment of the proposal to be carried out in accordance with the requirements of the Environmental Planning and Assessment Act 1979. In particular:

(i)   A valid BASIX Certificate that relates to the proposed development; and

(ii)   The submitted landscape plan is labelled as being draft.

14.   The development is not suitable for the site, therefore failing to satisfy Section 79(C)(1)(e) of the Environment Planning & Assessment Act 1979.

15.   The development would not be in the public interest, therefore failing to satisfy Section 79(C)(1)(3) of the Environmental Planning & Assessment Act 1979.

The issues

5. The applicant contends that the amended development application as constituted by the material it now seeks to rely upon is permitted under cl 55 of the EPA Regulation. Council opposes leave being granted on the basis that the material amounts to a new development application, and therefore the Court has no jurisdiction to entertain the application. The essential issue is whether the material now sought to be relied upon constitutes an amended development application or amounts to a new and original development application.

Legal framework

6. In determining whether an amendment to a development application can be made pursuant to cl 55 of the EPA Regulation, the Court must consider the terms of the clause, which provide:

Division 1 Development applications generally

55 What is the procedure for amending a development application?(cf clause 48A of EP&A Regulation 1994)

(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.

…

7. It is common ground between the parties that the relevant power contained in cl 55 is available to the Court on appeal by reason of s 39(2) of the Land and Environment Court Act 1979 (NSW) (‘LEC Act’). That position is consistent with many decisions of this Court, in particular Radray Constructions Pty Limited v Hornsby Shire Council [2006] NSWLEC 155; (2006) 145 LGERA 292 (‘Radray’) where Jagot J carefully analysed the earlier cases and provided an analysis of the manner in which the Court had approached the exercise of the power. Her Honour’s analysis and approach has been accepted in many subsequent cases.

8. Whilst various approaches have been taken to the application of cl 55 (and its predecessor) (see summary of earlier cases in Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 at [33] (‘Ebsworth’)), the recognised limit of the Court’s power under cl 55 is that the Court has no jurisdiction to entertain an “original” development application.

9. The availability of the power has been found to be determined having regard to the beneficial and facultative nature of the provision. It has frequently been stated that cl 55 ought to be construed so as to give “the widest interpretation which the language will permit” (Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; [1991] HCA 45 at 260-261; Radray at [9]).

10. The applicant submits, and I accept, that in applying cl 55 the Court has established three “clear principles” which may be summarised as follows:

1. The power to amend is “beneficial and facultative” so as to enable an applicant to respond to any issues identified, and to encourage the consent authority to solicit a better outcome (see Ebsworth at [40]).

2. The power to amend is the power to change, not to propose a new or original application.

3. A proposal may change in terms of design and layout, however the focus remains on whether the proposal can answer the overall description and essence of the development as originally proposed.

11. These principles have been further considered on a number of occasions.

12. In Ebsworth at [35] Talbot J noted two criteria that could be helpful in considering whether a development application may be amended or varied:

(1)   Whether the development as amended can be regarded as the same development as the one originally proposed in the context of the characterisation of the overall concept and the surrounding circumstance of the development application.

(2)   Whether there are essential elements that are so altered in the context of a consideration under the EPA Act that they place the development in a different category for the purpose of assessment.

13. In finding that a proposed amendment falls outside the scope of cl 55 in Pepperwood Ridge Pty Ltd v Newcastle City Council [2007] NSWLEC 19 at [35] (‘Pepperwood Ridge’), Talbot J noted:

… having regard to the overall concept I am not convinced that the substantial changes to the layout, specification and configuration of the proposed buildings are such that the proposal submitted in August 2006 can be regarded as an amendment or variation of the original development. It is in truth a new and conceptually different proposal which bears little resemblance to the original except in its overall description of the type of the development.

14. On the other hand, in Australian Enterprise Holdings Pty Ltd t/as AEH Group v Camden Council [2010] NSWLEC 70; (2010) 173 LGERA 226 at [31], Pepper J, referring to the analysis of Jagot J in Radray, noted:

Her Honour held that while the amendments or variations proposed by the applicant in that case would lead to a “changed development” they did not convert the application into an original application because “the essence” of the development remained the same. Accordingly, the amendments did not fall outside the scope of cl 55 and there was power to agree to the amendment or proposed variation.

Evidence

15. The applicant read the affidavit of Matt Sonter sworn 14 June 2017 which exhibited a bundle of documents (Exhibit A) containing, amongst other documents, the further detailed architectural plans, photo montages, various correspondence, and a Schedule of Amendments outlining the changes to the proposal. At par [11] Mr Sonter summarised, on the basis of the information he had and the beliefs he held, the amendments to the plans for which leave is sought as being:

(1)   Removal of the portion of the building facing Short Street to convert the building from a “U” shape to two bar buildings with one facing the Princes Highway and the other facing Applebee Street;

(2)   Increase from 5 live/work units to 12 live/work units facing Applebee Street and 62% of floor area of Applebee Street building for commercial purposes as required by the planning controls;

(3)   Introduction of commercial component on the first floor of the Princes Highway building and the provision of 40% of a compliant FSR as commercial development within the Princes Highway building;

(4)   Improvements to ground floor plane including rationalisation of garbage and loading dock areas (to achieve sufficient turning for service vehicles);

(5)   Introduction of roof top common open space to the princes Highway building;

(6)   Amendments to apartment design and layout to achieve ADG compliance (particularly in relation to apartment size);

(7)   Increase in height of Princes Highway building to seven storeys to match the approved adjacent development;

(8)   Increase in apartments from 63 to 71; and

(9)   Increase in FSR to 2.41:1.

16. In addition, Mr Sonter deposes that, apart from the amended plans, the applicant seeks to rely upon additional information and revised reports being:

1. Statement of Environmental Effects prepared by Sutherland & Associates Planning;

2. SEPP 65 Design Verification Statement prepared by Urban Link;

3. Traffic assessment, revision 2 prepared by TTM Consulting Pty Ltd;

4. Access compliance report, issue A prepared by Vista Access Architects Pty Ltd;

5. Waste management plan, revision E prepared by Elephants Foot Waste Compactors Pty Ltd; and

6. Commercial market and viability assessment prepared by HillPDA consulting.

17. Council read the affidavit of Jason Grant Perica, consultant town planner, sworn 26 June 2017. Mr Perica prepared, in tabular formulation, a “comparison between the development proposed by the development application …and the development now proposed”. That table is reproduced below:

Table A – Comparison of original DA with the new DA

Aspect	Original DA	New DA	Change
Use	Mixed use	Mixed Use	NA
Non Residential	5 x Live-work 516sqm retail 79sqm commercial	12 x Live-work 2929sqm commercial	+ 240% + 490%
Units total	63	71	+ 11%
Unit Mix#	17 x 1 Bedroom 37 x 2 Bedroom 14 x 3 Bedroom	29 x 1 Bedroom 37 x 2 Bedroom 5 x 3 Bedroom	+ 70% NA - 64%
Gross Floor Area	6361sqm	8994 sqm	+ 41%
FSR	1.69:1	2.41:1	+ 41%
Height – Princes Highway	6 storeys	7-8 storeys (incl. rooftop level)	+ 17-33%
Height – Applebee	3 storeys	3-4 storeys	+ 0-25%
Max Height (m) ##	RL 37.8m 20.38m	RL 43.18m 25.76m	+ 26%
Shape of Buildings	U – Shaped	Parallel blocks	Changed shape
Access – vehicles	Short St – middle	Short St – middle	Similar
Access – people	1 x Lift Applebee 2 x Lifts Short St 1 x Lift to Hwy	0 x Lift Applebee 0 x Lift Short St 3 x Lifts to Hwy	Changed access arrangements
Communal Space	937sqm	1429sqm	+ 53%
Basement levels	2 levels (“U” and “O” shape)	2 levels (“O” and “O” shape)	Larger basement
Parking spaces	85 Cars	154 Cars	+ 81%
Loading	Base of ramp to Short St	Top of ramp to Short St	Change
Setbacks – Above Ground ###	2-4m Applebee St 1-5m Short St 0-4m Princes Hwy	2.5m Applebee St 3m Short St 0m Princes Hwy	Changes, also to angles etc
Design Aesthetic	Modern, stepped, rectilinear, top differentiation	Modern, less stepping, angled and recrilinear	Changed

# The Unit mix numbers in the applicant’s SEE for the original DA do not align with the total units proposed

## Height taken from RLs of lift/stair overrun, and using 25.76m as height stated in new DA plans table (coverpage)

### Setbacks not dimensioned on original DA plans and approximated

18. Mr Perica also deposed to other aspects of the amendments sought and referred in some detail to the various reports that accompanied the original development application and the further documents now sought to be relied upon with the amended plans (all included in Exhibit A). Relevantly, at [6] he sets out the further material, reports and plans which he considers will be now required to be provided to Council to allow it to “properly consider the new DA” including stormwater plans; landscape plans; BASIX certificate; further details regarding Apartment Design Guide compliance; fire engineering report; and acoustic assessment report.

19. Importantly, Mr Perica gives evidence, at [12], that the proposal that is represented by the amended plans is “fundamentally different” to that which was considered by Council. He attests that the essence of the development is changed, such that the resulting development will bear very little resemblance to the original development application. In forming his opinion, having earlier prepared Table A, he highlights the following 10 aspects:

1. the changes to the configuration of the building(s) on the site;

2. the change in the nature and arrangement of uses within the site;

3. the design aesthetic and appearance of the development to all street frontages;

4. the significant change in presentation to Short Street;

5. the changed relationship with neighbouring development;

6. the significant change in density;

7. the significant change to car-parking on site;

8. the changed accessibility to and within buildings for residents;

9. the changes to unit mix; and

10. the need to essentially commence the development assessment again, due to the nature and quantum of changes proposed, and the related changes in environmental impact.

Applicant’s submissions

20. The parties were in general agreement as to the applicable principles and the applicant conceded that there were “many aspects of the design which had been changed or altered”. The applicant however maintained that the overall “concept” and “essence” of the proposal remains the same – being a mixed use development with two levels of basement parking, commercial tenancies at ground level with live/work units fronting the street, and residential accommodation above.

21. The applicant submits that it is important for the Court to consider that the amendments respond to certain issues raised by Council in its Reasons for Refusal, and submits that the amendments address these matters without so substantially amending the application such that it could be considered to be a new or original application. Thus, the applicant says that the Court would be satisfied that the amendments are designed to achieve a “better outcome” in the sense described by Talbot J in Ebsworth at [40].

20. Further the applicant submits that the justification for the power to amend must be construed as “beneficial and facultative” and would allow Council to respond to the issues raised by the amended application (and reliance upon the further supporting material).

Council’s position

23. Council submits, that the evidence of Mr Perica, including the comparison between the “original DA” and the “proposed DA” as shown in Table A above, and his summary of the 10 aspects which lead him to the view that the new plans are “fundamentally different”, is compelling.

24. Furthermore, whilst conceding that aspects of the proposal may address “some” issues in the Reasons for Refusal, the amended application, as stated by Mr Perica in unchallenged evidence, raises new issues which are unrelated to the Reasons for Refusal.

25. Council further submits that the extent of the changes proposed constitute a “tipping point” at which the application is amended to such an extent that it is a new or fresh application.

26. Council says to the extent that the applicant relies upon the concepts of “essence” or “overall concept” to submit that there is no significant change, when considered in the light of the manner, the Court has looked at similar requests in Khouri v Burwood Council and Anor [2001] NSWLEC 124, Dyldam Developments Pty Ltd v Holroyd City Council [2001] NSWLEC 204, Radray, Pepperwood Ridge as well as Ebsworth, the extent of the changes proposed is not simply a matter of characterisation.

Consideration

27. Having considered the plans and the changes that are sought to be made to the development application I find, not without some caution, that leave should not be granted to rely upon the amended material. My reasons may be shortly stated:

1. I find that, in the circumstances, the changes are significant. Reliance upon descriptive nomenclature such as “essence”, “overall concept”, and/or “characterisation” whilst of some assistance, does not substitute for close consideration of the detail involved. I acknowledge that the manner in which the Court has approached applications for leave in similar circumstances, has relied upon such descriptors and I accept that the application of cl 55 must be undertaken in a manner that is both beneficial and facultative. However, the nature and extent of the changes now proposed are such that even adopting the well-understood principles frequently stated in earlier cases, I cannot find this new material, even in the context of the “characterisation of the overall concept”, is such as to invite a grant of leave.

2. To the extent that the “essential” elements such as the generalised descriptions of various elements of the development, as being “part 3 part 6 storey”, “mixed use development”, “…including ground floor commercial tenancies”, and “dwellings and basement car parking”, are still able to be described as such, in a general sense, in my view, comparison of the present plans and proposed plans shows that most of the essential elements, including the actual configuration of the buildings and associated internal and external changes are not insignificant. Furthermore, the arrangement of the uses (that is the relationship between the commercial and residential) changes significantly. Whilst I find that certain of the changes to the “appearance” of the development to all street frontages on their own may not be significant, these changes affect the relationship with neighbouring developments. This and the significant change in the density proposed require discrete re-consideration.

3. Similarly, whilst consideration of the “essence” of the proposal, to the extent that this is an appropriate test, is still a “mixed use residential/commercial development”, as described by the applicant, the changes in the actual shapes of the buildings (let alone the proportions and constituency) and in particular changes in building form from a “U” shape to “two bar buildings with one facing Princes Highway and the other facing Applebee Street”, and the changes in the layout, number of parking spaces, and (although minor) changes to the setbacks, are all matters of significance.

4. Although I accept that, to some extent and as submitted on behalf of the applicant, the changes have been brought about in some way as to address the Reasons for Refusal, this is only partially correct. After close perusal of the evidence (in particular, the further expert reports sought to be relied upon contained in Exhibit B, in particular the report of expert Commercial Market and Viability Assessment prepared by HillPDA Consulting), indicates that one of the drivers of the change is the advice to the applicant relating to the commercial viability of the proposed configuration and also a response to an approved development in the vicinity of the proposal.

5. While the applicant’s desire to address some of the Reasons for Refusal is both understandable and to be encouraged (as per Talbot J in Ebsworth at [40]), and whilst it may be said that cl 55 allows an applicant to respond to issues raised and identified by Council or objectors, and to encourage a consent authority to “solicit a better outcome”, nonetheless, there remains the fact that Council, in accordance with the uncontested evidence of Mr Perica, is required to reconsider, to a significant degree, the whole of the application. This is further evidenced by the fact that the applicant seeks to rely not only on the amended plans but a significant suite of further expert reports (including those in Exhibit B). In addition, Mr Perica’s evidence is that even further reports will now be required. Therefore, the submission that the amendment seeks to address “issues” raised by Council, whilst understandable, does not fully resolve the question before the Court.

6. I accept the evidence of Mr Perica and Council’s submissions made consequent upon that evidence, to the effect that the amended plans amount to a development that is “fundamentally different”. Whilst I do not slavishly rely upon “Table A”, as I consider that too close scrutiny of quantitative differences obscures the question before the Court – as does overly enthusiastic reliance upon questions of “essence” and/or “characterisation” – having closely considered the plans (and the documentation), I find that the changes to the configuration of the buildings, the nature and arrangement of the uses, the relationship with the neighbouring developments, and the change in density including changes to provision and location of car parking, and the nature and extent of accessibility, provide sufficient reason for leave to amend not to be given.

28. Apart from the above, and not determinative in my view, I retain some discomfort with the manner in which the applicant has, upon considered advice, approached the amendments. Council’s Notice of Determination was dated 28 November 2016 and these Class 1 appeal proceedings were commenced on 23 May 2017. Very soon thereafter, on 14 June 2017, the present Notice of Motion was filed. There is no doubt, and the applicant accepts, that much of the material now sought to be relied upon including the detailed amended plans and a number of the detailed expert reports (in Exhibit B) were all prepared well before the Class 1 proceedings were commenced. That is, the applicant had prepared the detailed amendments to the plans prior to the commencement of proceedings, which, I assume, were commenced with the clear intention of immediately seeking leave of the Court to rely upon the amended plans and documentation.

29. Finally, I accept the view that although questions of “essence” may be relevant to the present inquiry, in this matter, as submitted by Council, it is ultimately a question of fact and degree and I accept that in this particular application a “tipping point” has been reached such that the amendment now sought constitutes a new or fresh application. In the circumstances, I am not prepared either to exercise the Court’s discretion to give consent on behalf of Council for the applicant to amend the development application nor am I prepared to grant leave for the applicant to rely upon the amended plans.

Orders

30. The Court orders:

1. Notion of Motion is dismissed.

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Decision last updated: 03 August 2017