Roger Simpson v City of Sydney Council

[2015] NSWLEC 1555

Land and Environment Court

New South Wales

Medium Neutral Citation:	Roger Simpson v City of Sydney Council [2015] NSWLEC 1555
Hearing dates:	30 October 2015
Date of orders:	30 October 2015
Decision date:	30 October 2015
Jurisdiction:	Class 1
Before:	Registrar Gray
Decision:	Leave granted to rely on amended plans
Catchwords:	AMENDED PLANS – whether leave should be granted – whether amendment has resulted in a new development
Legislation Cited:	Environmental Planning and Assessment Regulation 2000
Cases Cited:	Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155 Ebsworth v Sutherland Shire Council (2005) NSWLEC 603 Hakim v Canada Bay City Council [2006] NSWLEC 746
Category:	Consequential orders (other than Costs)
Parties:	Roger Simpson (Applicant) City of Sydney Council (Respondent)
Representation:	Counsel:     Solicitors: Colin Biggers & Paisley (Applicant) Council of the City of Sydney (Respondent)
File Number(s):	10601 of 2015
Publication restriction:	No

Judgment

1. REGISTRAR: This matter comes before me today on a Notice of Motion filed by the applicant on 23 October. That Notice of Motion is supported by the affidavit of Mr Phillips of 21 October 2015. The Notice of Motion seeks to rely on amended drawings or amended plans and therefore to amend the development application, the subject of the proceedings. The amended plans effectively remove the skylight and the terrace that were the subject of the original development application and replace them with proposed new casement windows.

2. In Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155, Jagot J framed two questions for the Court’s consideration of whether leave should be granted to rely on amended plans. The first question is whether the power under cl 55 of the Environmental Planning and Assessment Regulations is available. In asking this question, Jagot J says, at [16]:

I prefer to ask whether the development now proposed is an amendment or variation of the application recognising that amendment or variation may result in a change to the proposed development, but the Court has no jurisdiction to entertain an original application.

3. The second question for consideration outlined by Jagot J is whether, if the Court does have the power under cl 55, that power should be exercised. The respondent in these proceedings is of the view that the amended plans constitute a new development application. The respondent points to the description of the application contained on page 4 of the development application form submitted to the Council by the applicant. The description on the form is for an “attic level terrace”.

Submissions

4. The respondent says that the amended plans are not for a terrace and therefore the application is a new development application. The respondent then referred me to the decision of Acting Chief Judge Talbot in Ebsworth v Sutherland Shire Council [2005] NSWLEC 603. At [35], his Honour said:

…The two criteria that could be helpful in considering whether a development application may be amended or varied are:

(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.

5. The respondent submits that having regard to the concept of the development application as a terrace or a deck, the fact that there is now an application for something else means that it is a new development application. The respondent says, however, that if the Court was to overcome this jurisdictional question then it would have no objection to leave being granted for the applicant to rely on amended plans. I am also informed that the Council does not intend to renotify the plans.

6. The applicant, on the other hand, draws my attention to the decision of Biscoe J in Hakim v Canada Bay City Council [2006] NSWLEC 746. In that decision, Biscoe J found that a liberal approach is to be taken when considering whether to allow amended plans. The applicant points out that there is no change to the type of material that is to be used and to the fact that it is a development application concerning a roof of a terrace. Further, the applicant says that there is no way that the second test outlined by Acting Chief Judge Talbot in Ebsworth v Sutherland Shire Council could be said to be met given that the essential elements are not so radically altered that they place the development in a different category.

Consideration

7. The question regarding whether the proposed amendment to the application renders it a new application depends largely on the characterisation of the original development application. If one were to characterise the original development application as being for the construction of a terrace or a deck, then obviously an amendment that removes the terrace or deck and replaces it with some windows is an amendment that renders it a new development application. However, I am not of the view that the characterisation should be so constrained and I do not think that the applicant should be so limited by the wording on the development application form lodged with the Council.

8. Indeed, the description on the form is for an attic-level terrace, whereas the development application actually also sought a skylight. The better characterisation of the development, in my view, is for alterations and additions to the roof of the terrace. Therefore, an amendment of the type sought does not change this characterisation. The applicant still seeks to change the roof of the terrace at the rear. As such, I am satisfied that the amendment is not a new development application.

9. Having now been satisfied that the application is not a new development application and that therefore there is power for the Court to grant leave to amend the development application consistent with the tests outlined in Radray Constructions, I must now turn my mind to whether the Court should exercise its discretion to grant that leave.

10. Both parties are of the view that the proposed amendment seeks to remove the issue concerning overshadowing. This was one of the main issues in the Statement of Facts and Contentions and was the issue raised by the only submission made by an objector to the proposal. In light of this, I am satisfied that it is appropriate to exercise the Court’s discretion in favour of granting leave to the applicant to rely on the amended plans. I am prepared to make orders in accordance with the Notice of Motion.

11. An order is also made under s 97B(2). I make that order because the development application itself, although small, has been quite substantially changed in the context of that application itself. I cannot accept that it would be described as a minor amendment and therefore s 97B applies.

**********

Decision last updated: 06 January 2016