Port Stephens Veterans and Citizens Aged Care Limited v Port Stephens Council

[2002] NSWLEC 242

Land and Environment Court

of New South Wales

CITATION:	Port Stephens Veterans and Citizens Aged Care Limited v Port Stephens Council [2002] NSWLEC 242
PARTIES:	APPLICANT Port Stephens Veterans and Citizens Aged Care Limited RESPONDENT Port Stephens Council
FILE NUMBER(S):	(1)0191 of 2002
CORAM:	Talbot J
KEY ISSUES:	Development Application :- amended plans - whether Court exercises its discretion to consent to amend the development application and grant leave to rely on amended plans
LEGISLATION CITED:	Land and Environment Court Act 1979 Land and Environment Court Rules 1979 Pt 13 r 16(b)(1) State Emvironmental Planning Policy No. 5 - Housing for Older People and People with a Disability
CASES CITED:
DATES OF HEARING:	13/12/2002
DATE OF JUDGMENT:	12/18/2002
LEGAL REPRESENTATIVES:	APPLICANT Mr RRI Harper (Barrister) SOLICITORS Edmunds & Company RESPONDENT Mr JB Maston (Barrister) SOLICITORS Sparke Helmore

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

(1) 0191 of 2002

Talbot J

18 December 2002

Port Stephens Veterans and Citizens Aged Care Ltd

Applicant
v

Port Stephens Council

Respondent

Judgment

Introduction

1 The applicant proposes to construct a development pursuant to State Environmental Policy No. 5 – Housing for Older People or People with a Disability (“SEPP 5”) on land fronting Soldiers Point Road and Diemars Road, Salamander Bay. On 13 March 2000 the applicant lodged a development application seeking consent to the development of 124 single storey retirement villas, together with roads, general layout and site development. Issues have been raised by Port Stephens Council (“the council”). The application was referred to National Parks and Wildlife Service (“NPWS”) for review and seeking its concurrence.

2 By written notice dated 18 December 2001 the council refused consent to the applicant’s development application.

3 The applicant commenced the present class 1 appeal on 30 May 2002.

4 The applicant has filed a notice of motion seeking an order that the applicant be granted leave to rely upon amended plans.

5 Following the raising of issues by the council and NPWS, the proposal has been significantly amended in the following respects:-

(1) Access from Soldiers Point Road has been deleted;

(2) An internal roundabout has been deleted;

(3) An additional access has been provided to Diemars Road opposite Caledonia Close;

(4) The number and orientation of individual villas in the eastern and south-eastern sections of the site has been varied;

(5) Four villas have been replaced by a nature area in the centre of the site;

(6) Three nature areas have been added;

(7) 34 villas have been deleted from the most western section of the site;

(8) The total number of villas is reduced from 124 to 84;

(9) An asset protection zone has been created in the most western section to allow clearing or partial clearing of vegetation for bush fire protection; and

(10) Typical floor plans have been amended to take account of use by disabled persons under amended requirements of SEPP 5.

6 It is common ground that as a consequence of the changes to the proposed development the following will be necessary:-

(a) A revised Statement of Environment Effects;

(b) A revised Species Impact Statement (“SIS”); and

(c) A revised traffic assessment.

7 The NPWS has informed the applicant that the proposed development does not place the local population of Squirrel Gliders at a significantly higher risk of extinction and, therefore, would not refuse to concur with granting development consent to the proposed development as amended.

8 Mr Maston submits, on behalf of the council, that as the major issues raised by the council must be completely re-assessed, the amended proposal should be regarded as a new application. Furthermore, any change that requires a fresh SIS and demands the carrying out of a different eight-part test necessarily takes the applicant back to the initial starting point. Accordingly, a re-formulated development application is appropriate in the circumstances.

9 Mr Harper, who appears for the applicant, invites the Court to look at the whole site and conclude that what remains of the original proposal is, as a matter of fact and degree, the same proposal. It is his submission that the inherent character of the development as an aged care facility is not altered. By taking this approach, according to the applicant, it is as if the original proposal has been amended in some minor respects but the applicant will not proceed to complete the western section of the development. This submission overlooks the proposed changed use of the western section for the specific purpose of an asset protection zone in lieu of dwellings. Works, mainly clearing of vegetation, will be required in this area under the amended proposal.

10 Mr Harper says it should be noted that a number of the amendments are to address legislative changes which have taken place since the original development application was lodged on 13 March 2000. In particular, the applicant draws attention to amendments to SEPP 5 and the publication of Planning for Bushfire Protection 2001.

11 This is undoubtedly so. It is difficult to appreciate how the underlying reasons for the changes can, except perhaps in limited circumstances, be justification for indulging an applicant who makes significant changes to its original application. The underlying cause for changes does not necessarily alter the character of the amendments.

12 Even if the proposed changes can be truly regarded as amendments, I must nevertheless ultimately decide whether, having regard to the consequences of those changes, the Court should in the circumstances give consent on behalf of the council for the purposes of cl 55 of the Environmental Planning and Assessment Regulation 2000 and also grant leave for the applicant to rely on the amended plans pursuant to Pt 13 r 16(b1) of the Land and Environment Court Rules 1979. The consequences are predominantly administrative. Nonetheless, significant questions arise that are, on balance, issues that should be determined by the council. The changes are sufficiently dramatic to effectively demand the whole process of exhibition, consideration and report be re-constituted. The traffic and species impact issues at least need to be addressed de nova.

13 In my view, it is not appropriate for the Court to intervene in this case by reverting to such an early point in the administrative process even if technically it does have the power to do so pursuant to s 39(2) of the Land and Environment Court Act 1979.

14 Therefore, I am not prepared to neither exercise the Court’s discretion to give consent on behalf of the council for the applicant to amend the development application nor to grant leave for the applicant to rely on the amended plans at the hearing.

15 The present underlying circumstances do not justify the exercise of the Court’s discretion otherwise than by a refusal to either agree with the applicant’s request that the Court give the necessary consent or to grant leave pursuant to r 16(b1).

16 There has been no argument in relation to the question of costs on the notice of motion. Accordingly, the question of costs is reserved. The exhibits may be returned.

17 The dates for the hearing were vacated by consent during the hearing on the notice of motion.