Rose Bay Afloat Pty Ltd v Woollahra Council

[2002] NSWLEC 208

Reported Decision: 126 LGERA 36

Land and Environment Court

of New South Wales

CITATION:

Rose Bay Afloat Pty Ltd (Formerly Known As Titanic Floating Restaurant Pty Ltd) v Woollahra Council & Anor. [2002] NSWLEC 208

PARTIES:

APPLICANT:
Rose Bay Afloat Pty Ltd (Formerly Known As Titanic Floating Restaurant Pty Ltd)

RESPONDENT
Woollahra Council

INTERVENOR
The Waterways Authority

FILE NUMBER(S):

10957 of 2001

CORAM:

Bignold J

KEY ISSUES:

Development Application :- application to amend so that development is relocated on a development site-whether changes to proposed development constitute a new application

LEGISLATION CITED:

Environmental Planning and Assessment Regulation 2000, cl 49, cl 50 and cl 55
Supreme Court Rules, Part 8, r 8

CASES CITED:

Ervin Mahrer v Strathfield Council (No 2) (2001) 115 LGERA 259;
North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470;
Reeson v Warringah Shire Council (Cripps CJ unreported 16 October 1990);
Royal Motor Yacht Club v Sutherland Shire Council (Bignold J unreported 26 June 1987);
Wharf 11 Pty Ltd v Sydney City Council (Cripps CJ unreported 15 February 1991)

DATES OF HEARING:

05/09/02, 19/09/02

DATE OF JUDGMENT:

11/18/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Robson, Barrister
SOLICITORS
Applicant Blake Dawson Waldron

RESPONDENT
Mr P Clay, Barrister
SOLICITORS
Michell Sillar

INTERVENOR
Mr I Hemmings, Barrister
SOLICITORS
Baker and McKenzie

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Matter No . . 10957 of 2001

Coram : Bignold J

18 November 2002

ROSE BAY AFLOAT PTY LTD (FORMERLY KNOWN AS TITANIC FLOATING RESTAURANT PTY LTD)

Applicant

v

WOOLLAHRA MUNICIPAL COUNCIL

Respondent

THE WATERWAYS AUTHORITY

Intervenor

JUDGMENT

Bignold J:

A. INTRODUCTION

1. Two interlocutory matters requiring adjudication have arisen in pending class 1 proceedings (involving an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) against the Council’s refusal of development consent for the establishment of a restaurant (in replacement of an existing floating restaurant) and public boardwalk and pontoon on land situate below mean high water mark at Rose Bay. The first matter is an application for joinder as a party to the proceedings made by the Waterways Authority, the owner of the bed of Sydney Harbour (including the land upon which the proposed development is to be located) and the second matter is the separate raising by the Council and by the Waterways Authority of a number of questions of law for preliminary determination in advance of (and potentially involving the elimination of the need for) a hearing of the appeal on the planning merits.

2. Both interlocutory matters have arisen in direct response to the Applicant’s decision (as communicated to the Council by its Solicitor’s letter dated 22 April 2002) to propose amendments to the development application, the subject matter of the pending class 1 proceedings. (It appears that the proposed amendments are in response to the notified reasons for the Council’s determination of the original development application.) That communicated decision was immediately responded to by the Council’s Solicitors by letter dated 23 April 2002 advising that the Council—

(i) did not consent to the vacation of the hearing dates (from 20 to 24 May 2002) that had been allocated for the hearing of the class 1 proceedings;

(ii) did not consent to the proposed amendments to the development application;

(iii) would oppose any Notices of Motion seeking orders from the Court in respect of the vacation of the hearing dates or the amendment of the development application.

(iv) would seek an order for costs thrown away as a result of the vacation of the hearing dates and of the proposed amendment of the development application.

3. On 30 April 2002, the Registrar, on the Applicant’s Motion, vacated the hearing dates and reserved all questions of costs (including the costs associated with the Council’s Motion seeking an order for costs if the hearing dates were vacated). Thereafter, the Applicant filed and served the amended plans on 25 May 2002.

4. By Notice of Motion filed 17 July 2002, the Waterways Authority sought an order that it be joined as a party upon the ground that it was the owner of the land which was the subject of the pending class 1 proceeding, and in that capacity, had not given its consent to the lodgement of the amended development application as proposed by the Applicant. It had only given the requisite consent under the EP&A Act as the owner of the land, to the Applicant’s development application as originally lodged with the Council (the Council’s determination of that development application being the subject matter of the pending class 1 proceedings).

5. At callover on 5 August 2002, the Council raised for preliminary determination the following questions of law—

1. Whether the Court has jurisdiction to consider and determine the proposed modified development application constituted by plans numbered DA01C, DA01D, DA02C, DA03C, DA04C, DA05C and DA06 (the proposed modified application ) by virtue of the land to which the proposed modified application relates being different to the land for which the original development application relates.

2. Assuming the Court has jurisdiction to determine the proposed modified application, is there land owner’s consent for the proposed modified application pursuant to Regulation 49 of the Environmental Planning and Assessment Regulation 2000.

3. Whether, in the present absence of land owner’s consent to the proposed modified application, the appeal should be dismissed.

6. On 6 August 2002, the Waterways Authority filed in Court its Statement of Issues which it wished to raise in the proceedings and which included the following four questions which it posed as “preliminary issues”—

1. Are the plans numbered DA 01-5 Revision C, Project No.98/8218 dated 25 May 2002 ( New Plans ) so different from the plans originally lodged with the Respondent and refused consent on 22 October 2001 as to constitute a new development application?

2. Even if the answer to question 1 is no, has land owner’s consent been granted for the development application for the New Plans?

3. If the answer to question 2 is no, has a development application been validly made for the New Plans?

4. If the answer to question 2 or 3 is no, can the Court determine a development application for the New Plans in the absence of consent from the Waterways Authority as landowner to the lodgement of the New Plans with either the Court or the Respondent?

7. On 6 August 2002, the Registrar fixed both interlocutory matters for hearing on 5 September 2002 and gave directions for the hearing, including a direction for the parties and the Waterways Authority to file and serve a Statement of Agreed Facts and an Agreed Bundle of Documents.

8. When these interlocutory matters came before me on 5 September 2002, the Applicant sought an adjournment to investigate one of the documents that the Waterways Authority sought to have included in the Agreed Bundle, namely an aerial photograph of the relevant section of Rose Bay which depicted by distinctive outlines superimposed thereon, inter alia, the areas of Rose Bay to be respectively occupied by—

(i) the proposed development as depicted in the original development application; and

(ii) the proposed development as depicted in the Applicant’s proposed amended plans.

9. The reason for seeking the adjournment was the Applicant’s belief that the document did not accurately depict the outlines of the originally proposed development and the amended proposed development or the relationship between them.

10. Both the Council and The Waterways Authority, though not opposing the adjournment application, sought orders for costs thrown away by virtue of the adjournment. In the result, I acceded to the Applicant’s submission and granted the adjournment application and reserved the question of costs (principally to await the outcome of the Applicant’s investigation of the disputed document, because I considered that that matter would have some bearing on the need for the adjournment and hence on the question of costs).

11. When the hearing resumed on 19 September 2002, the parties tendered for inclusion in the Agreed Bundle of Documents the aerial photograph showing, inter alia, the aforesaid outlines of the proposed development as originally depicted in the development application and as proposed to be amended by the Applicant’s amended drawings (which were also included in the Agreed Bundle of Documents). Included in those amended drawings is Drawing DA01D, being a site plan depicting the amended proposal which plan includes by way of superimposition the outline (footprint) of the original proposal (which was the subject matter of the development application determined by the Council and is now the subject matter of the pending class 1 proceedings).

12. At that resumed hearing, the Applicant, by Motion filed that day, sought an order that it be granted leave to rely in the class 1 proceedings upon the amended plans or the proposed development. This action, which was not opposed by the Council of the Waterways Authority, was but a formalising of the Applicant’s intended and preferred course in the class 1 proceedings as previously communicated to the Council, which unilateral decision had evidently generated both the interlocutory matters now requiring adjudication.
B. THE APPLICATION FOR JOINDER BY THE WATERWAYS AUTHORITY

13. The ground upon which the Waterways Authority seeks to become a party to the proceedings is that the Applicant’s proposed amended development application would result in the proposed development being located on a part of the sea bed of Rose Bay which it, as the owner of the sea bed of Sydney Harbour, has not consented to, in contradistinction to its consent, qua landowner, that had been given to the making of the original development application. Apparently because it has formed the opinion that it will not consent to the relocation on the seabed of Rose Bay of the proposed development depicted in the Applicant’s amended development application plans, the Waterways Authority seeks to agitate a number of preliminary legal objections to the Court entertaining the Applicant’s amended development application, which objections if sustained, would legally preclude the grant of development consent to the amended development application. Additionally, the Waterways Authority has raised 7 issues going to the planning merits of the case if the Court were ultimately to embark upon a hearing of the class 1 proceedings on the planning merits.

14. Although the legal issues raised by the Waterways Authority have been formulated by reference to the “new plans” contrasted with the “original plans” that accompanied the Applicant’s original development application and to the “new development application”, the issues sought to be raised are capable of being re-formulated by reference to the statutory power of amendment or variation conferred by cl 55 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) which power the Applicant’s Notice of Motion has expressly invoked in seeking the leave of the Court to rely upon the amended plans in the class 1 proceedings. In truth, the 7 preliminary questions collectively raised by the Council and the Waterways Authority are to be appreciated as legal objections to the Applicants’ Motion seeking the Court’s leave pursuant to cl 55 of the Regulation for the Applicant to rely upon the amended plans on the final hearing of its development appeal, since that is the sole foundation relied upon by the Applicant.

15. Since the present proceedings have given rise to a number of legal questions being respectively raised by the Council (a party) and by the Waterways Authority (a person seeking to become a party) which are required to be determined separately and in advance of any hearing of the proceedings on the planning merits, it is appropriate in my judgment to confine at the present time, consideration of the application for joinder to participation in the separate hearing of those questions to be separately determined in advance of any final hearing on the planning merits. This course, is, as I understand it, entirely acceptable to the Waterways Authority, and to the parties.

16. In my judgment, the joinder of the Waterways Authority to enable its participation in this separate part of the proceedings is “necessary to ensure that all matters in dispute in the proceedings may be effectively determined and adjudicated upon” within the meaning of Part 8 r 8(1)(b) of the Supreme Court Rules that have been adopted by the Rules of this Court: vide Part 6 r 1(1).

17. This is because of the statutory interest conferred upon, or recognised in, a land owner under the EP&A Act in the case of the making of a development application relating to land that is not owned by the applicant: (vide cl 49(1) of the Regulation) being an interest that the High Court (when considering its antecedent statutory counterpart, the EP&A Act, s 77(1) as then in force) described as “a power to veto a development by refusing consent to the making of a development application”: see North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 480.

18. By virtue of being possessed of this statutory interest in terms of the EP&A Act, it would be open to the Waterways Authority to bring class 4 proceedings in this Court seeking a declaration that it had not consented to the proposed amended development application and that absent its consent, it was beyond the Court’s power to grant development consent to the Applicant’s proposed amended development application or that the proposed amended development application was not in truth an amendment, but was a new development application.

19. The entitlement to sue in this Court for such declarations qualifies the Waterways Authority with a sufficient interest to participate in the separate preliminary hearing of the questions of law that have been raised by the Council and by itself. The assertion of its case based upon that interest in the present proceedings instead of commencing separate proceedings is obviously a more efficient manner for the Court to entertain the claims made by the Waterways Authority: see the Land and Environment Court Act 1979, s 22.

20. Although the separate questions raised by the Council and by the Waterways Authority are similar and involve considerable overlap, it is only the Waterways Authority that can claim the statutory interest, qua landowner, under the EP&A Act in respect of the proposed amended development application, and it is only the Waterways Authority that has raised the question whether the proposed amended development is so different from the proposed original development as to constitute a new development application in contradistinction to an amended or a varied development application within the scope or ambit of cl 55 of the Regulation.

21. Accordingly, the separate participation of the Waterways Authority in the separate hearing on the preliminary questions of law is, in my judgment, justified and I so order. In the circumstances, I reserve the question whether the Waterways Authority should be joined as a party to the hearing on the planning merits in the event of the Applicant’s class 1 proceeding surviving the several legal objections raised against the Court entertaining the proposed amended development application.
C. THE RELEVANT FACTS

22. Although the parties did not tender a Statement of Agreed Facts, they did tender an amended Agreed Bundle of Documents (Exhibit 1) which included the following—

(i) correspondence passing between the Applicant and the Waterways Authority concerning the latter’s consent to the making of the original development application;

(ii) the original development application and accompanying documents, including the original development application plans;

(iii) the amended development application plans;

(iv) site plan showing respectively those parts of Rose Bay sea bed occupied or to be occupied by the following—

(a) the existing floating restaurant, held under current lease;

(b) the proposed development in respect of which the Waterways Authority had granted conditional consent, qua landowner;

(c) the proposed development in respect of which the Waterways Authority granted unconditional consent, qua landowner; and

(d) the proposed amended development in respect of which the Waterways Authority has not granted any separate or additional consent, qua landowner.

23. It may be noted in respect of document (iv) that only items (c) and (d) are relevant for present purposes.

24. In addition to the primary facts established by the documentary evidence, the Applicant has provided the following particulars as required of cl 55(2) of the Regulation indicating the nature of the changed development—

Comparison of Plans DA01C, DA02C, DA03C, DA04C, DA05C and DA06 dated 25 May 2002 ( New Plans ) with Plans D, DA01, DA01A, DA02A, DA03A and DA04 dated 17 November 1999 ( Plans lodged with Development Application )

1. The restaurant shown in the New Plans is approximately 12 metres longer but approximately 4 metres thinner than the restaurant shown in the Plans lodged with the Development Application.

2. The roof shown in the New Plans is approximately 1.8 metres lower than in the Plans lodged with the Development Application and this is because the mezzanine level has been deleted.

3. The roof in the New Plans is has been simplified to one continuous curve

4. The perimeter walls in the New Plans are completely transparent. Solid perimeter walls were deleted. The restaurant shown in the New Plans is less solid than the restaurant shown in the Plans lodged with the Development Application (because the kitchen has been located away from the perimeter of the structure). The restaurant in the New Plans has no solid walls facing towards the promenade of Lyne Park and New South Head Road (Southern and Eastern walls).

25. A crucially important fact to be established in the present case concerns “the land to which the development application relates”. This fact is crucial to the questions (i) who is competent to make a development application (vide cl 49 of the Regulation) and (ii) how must a development application be made and in particular, what information must accompany it (vide cl 50).

26. Clause 49 employs the expression “land to which the development application relates” the meaning of which has been determined by the decision of the High Court in North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 as “the topographical entity” or “the particular parcel of land” “on which it is proposed that the development, the subject of the development application, is to be carried out”.

27. Clause 50 employs a slightly variant expression. It refers to “the address and formal particulars of title, of the land on which the development is to be carried out” (Item 1(c) of Part 1 of Schedule 1) and to “a site plan of the land” which must indicate inter alia “(a) the location, boundary dimensions, site area and north point of the land” (Items 2(1)(a) and (2) of Part 1 of Schedule 1)

28. It is clear that those expressions are intended to convey what is conventionally known in a town planning context as the “development site”, meaning the parcel of land upon which the development is proposed to be carried out: Ligon. In a case (such as the present) where the proposed development is the erection of a building the development site is generally a wider concept than the other conventional planning concept of the proposed building’s “footprint on, or site occupation of” the development site. In other words, generally in such a case there will be parts of the development site that are not occupied by the building to be erected thereon, and which serve as its curtilage or grounds or gardens etc. (This is not to deny the phenomenon of a building occupying the whole of the development site eg an office building in Sydney’s Central Business District).

29. The simple, but important point, is that in its context, the expression “land to which a development application relates” embraces the conventional planning concept of “the development site”, and that concept is different from the conventional planning concept of “building footprint or site occupation” (although in the case of some development proposals, the two planning concepts can involve precisely the same area of land).

30. With the foregoing exposition in mind, it is now necessary to examine the documentary evidence to see what light it casts upon the question what is the land to which the development application (either the original proposal or the amended proposal) relates. Although that question is one of fact, it is only to be determined in the light of the established legal criterion or matrix employed by the relevant provisions of the EP&A Act and Regulation (the terms of which are hereinafter recited).

31. In the original development application form the location and description of the development site was simply stated to be “in the suburb of Rose Bay”.

32. The accompanying development application plans (DA01, DA01A, DA02A, DA03A and DA04 dated 17 November 1999) included site plan (DA01A) which depicted the footprint location within the seabed and waters of Rose Bay of the proposed restaurant and public boardwalk leading to a proposed pontoon. The site plan also depicted by dotted line the location of the existing floating restaurant which the proposal was intended to replace.

33. Comparison of the respective outlines of the existing floating restaurant and the proposed restaurant shows that they are similarly, though not identically, located within the waters and sea bed of Rose Bay.

34. In the Statement of Environmental Effects which accompanied the original development application, the development site is described in Section 2.1 as follows:

The subject site is located on the foreshore of Rose Bay, adjacent to Lyne Park and is known as Part of C T Vol 5018 Fol 1 (see Figure 1)

35. Figure 1 is a location plan of a section of Rose Bay (both the waterway and the adjacent suburb) and which contains only an approximate depiction (by way of a circle) of the location of the development site within the waters of Rose Bay. It is common ground that Certificate of Title Volume 5018 Folio 1 embraces all of the land situate below mean high water mark in Sydney Harbour.

36. Section 3 of the Statement of Environmental Effects contains a more detailed description of the proposed development including the following passage:

As indicated the proposal is for the replacement of the existing floating restaurant with a new restaurant, public boardwalk and pontoon. The proposed scheme has been considered and refined over an extensive design period. The scheme results from a number of meetings with Woollahra Council and the Waterways Authority, examination of Council and State Government planning controls and detailed analysis of the site context. As indicated, consent to lodge this application ahs been granted by the Waterways Authority (see Annexure 1). The basis of the design philosophy, culminating in the proposed building, is to provide an aesthetic and functional improvement on the existing floating restaurant facility on the site (see Annexures 2, 3 and 4). The underlying intention is to enhance public access to the foreshore, provide linkages to adjoining public space and capitalise on the natural attributes of Sydney Harbour, by incorporating a maritime theme.

37. The same Section contains the following Table providing details of the proposed development by comparison with details of the existing floating restaurant development:

TABLE 1: DETAILS OF PROPOSAL

DescriptionCurrentProposed

Area of lease736.6m2599m2

Area of lease proposed for private use (restaurant)736.6m2333m2

Area of lease reserved for public benefit-210m2 + 50m2 pontoon

Maximum height of development8.2m7.1m

Gross floor area (GFA) of restaurant1,000m2567.3m2

No. of seats in restaurant300280

Public Jetty-168m

38. I shall defer my ultimate finding on what is “the land to which the development application relates” until my determination of the relevant questions of law.

39. It is now necessary to note the content of the documentary evidence concerning the Waterways Authority’s consent, qua landowner, to the Applicant’s development application which was lodged with the Council on 6 January 2000.

40. By letter dated 15 November 1999, the Waterways Authority acting “on behalf of the Marine Ministerial Holding Corporation” (MMHC) “as the owner of the land to which your application relates” granted consent to “the lodgement of a development application in respect to the proposal shown” (on specified drawings) subject to 7 specified conditions requiring inter alia design changes to the proposed development. The letter included the following contents:

The countersigned landowner’s consent form returned herewith is to accompany your application to Woollahra Council. MMHC consent does not imply that it supports or opposes the proposal. However, it will agree to lease its vested land after development consent is obtained.

This landowner’s consent remains valid for 18 months and is conditional upon your agreement to enter into a lease to cover the total area of MMHC land. The lease will be provided after construction is completed. All costs associated with the preparation of the lease are to be met by you as lessee. In anticipation of this outcome, please sign and return within fourteen days the enclosed Agreement to Enter into a Lease.

We have forwarded a copy of this letter to Woollahra Council so that it is aware of our requirements since you must obtain Waterway’s approval for construction before commencing works on MMHC land following Development Consent. Detailed and dimensioned working drawings that comply with the Guidelines for Waterside Structures will be required to clearly describe all the proposed works and their components. The Waterways Authority must approve these in writing before construction starts.

The Authority reserves the right to require further details, verifying calculations etc, following submission and examination of the foregoing. Woollahra Council is the consent authority for the development, but an application for construction must be lodged with this Authority if Council gives consent.

41. A copy of the Waterways Authority’s letter dated 15 November 1999 was included in the documentation supporting the development application lodged with the Council on 6 January 2000. The development application was supported by drawings DA01A, DA02A and DA03A which had apparently been prepared to comply with the design changes to the proposal that had been required by the conditions of the consent granted by the Waterways Authority’s letter dated 17 November 1999. However, no doubt to clarify the matter the Applicant lodged with the Council a copy of a further letter from the Waterways Authority dated 12 January 2000 which was in the following terms:

Premises: Waterway adjacent to Lyne Park, Rose Bay

Proposal: Restaurant Facility

Applicant: Inapa Pty Ltd & Titanic Floating Restaurant Pty Ltd

Further to my letter of 15 November 1999.

The Waterways Authority acts on behalf of the Marine Ministerial Holding Corporation (MMHC) as the owner of the land to which your application relates. Consent has been granted to the lodgement of a Development Application to Woollahra Council in respect to the proposal shown by Joshua Farkash & Associates, drawing Nos 98/8218/DA901A and DA023A.

Conditions 1-7 of the letter of 15 November 1999 have been met in the above drawings. All other conditions remain applicable to this consent.

42. In summarising my relevant findings of primary fact based upon the agreed documentary evidence, I leave for later discussion and determination my ultimate findings of fact on the following questions:

(i) What is the land to which the development application relates?

(ii) Is the amended development proposal an amendment or variation of the original development application within the meaning of cl 55 of the Regulation?

(iii) Does the consent granted by Waterways Authority qua landowner, to the lodging of the original development application, apply to the proposed amended development application?

43. Except for those reserved questions, my relevant findings of primary fact are as follows—

(i) the pending class 1 proceeding is an appeal pursuant to EP&A Act , s 97 against the Council’s determination refusing development consent to the Applicant’s development application to erect a restaurant building and public boardwalk and pontoon on the foreshores of Rose Bay;

(ii) that development application was lodged with the Council on 6 January 2000 and was supported by the requisite land owner’s consent by virtue of the Waterways Authority’s letter dated 12 January 2000;

(iii) the Applicant has sought the Court’s agreement pursuant to cl 55 of the Regulation to the amendment or variation of that development application;

(iv) the proposed amended development application drawings depict the proposed amended development;

(v) the differences in building footprint location in Rose Bay between the original proposed development and the proposed amended development are depicted on the site plan DA01D a reduced copy of which is annexed hereto and marked A (to which plan I have added hatching on the footprint of the amended proposal in order to more clearly differentiate it from the footprint of the original proposal);

(vi) the changes to the original development proposal made by the proposed amended proposal are accurately verbally described in the annexure to the Applicant’s Notice of Motion invoking cl 55 of the Regulation (which description I have earlier recited).

D. THE STATUTORY PROVISIONS RELEVANT TO THE QUESTIONS OF LAW

44. Before considering the questions of law raised by the parties, it is necessary to note the relevant statutory provisions of the EP&A Act and the Regulation.

45 The EP&A Act Part 4, together with the provisions of Part 6 of the Regulation contain detailed provisions relating to the grant of development consent which occurs when a “development application” to carry out “development” is determined by the grant of “development consent” (either unconditionally or subject to conditions): vide s 80(1).

46. The EP&A Act, s 4(1) includes the following definitions of the terms “development”, “development application”, and “development consent” which are relevant for present purposes—

development means:

(a) the use of land, and

(b) the subdivision of land, and

(c) the erection of a building, and

(d) the carrying out of a work, and

(e) the demolition of a building or work, and

(f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,

but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

development application means an application for consent under Part 4 to carry out development but does not include an application for a complying development certificate.

development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate.

47. Section 76A(1) provides as follows:

1) General

If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a) such a consent has been obtained and is in force, and

(b) the development is carried out in accordance with the consent and the instrument.

48. Sections 78 and s 78A(1) and (9) provide as follows:

78. The development consent process---the main steps

The main steps in the development consent process are set out in sections 78A--81 and in the regulations made for the purposes of this Part.

78A. Application

(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development

……………

(9) The regulations may specify other things that are required to be submitted with a development application

49. Part 6 of the Regulation includes the following detailed provisions relating to development applications (the relevant parts of which I have highlighted)—:

49 Who can make a development application?

(1) A development application may be made:


(a) by the owner of the land to which the development application relates, or

(b) by any other person, with the consent in writing of the owner of that land.


(2) Subclause (1) (b) does not require the consent in writing of the owner of the land for a development application made by a public authority if, before making the application, the public authority serves a copy of the application on the owner.

(3) Despite subclause (1), a development application made by a lessee of Crown land may only be made with the consent in writing given by or on behalf of the Crown.

(4) In this clause, public authority includes an irrigation corporation within the meaning of the Water Management Act 2000 that the Minister administering that Act has, by order in writing, declared to have the status of a public authority for the purposes of this clause in relation to development of a kind specified in the order.

50 How must a development application be made?

(1) A development application:

(a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and

(b) if the consent authority so requires, must be in the form approved by that authority, and

(c) must be accompanied by the fee, not exceeding the fee prescribed by Part 15, determined by the consent authority, and

(d) must be delivered by hand, sent by post or transmitted electronically to the principal office of the consent authority, but may not be sent by facsimile transmission.

50. Part 1 of Schedule 1 relevantly provides:

1 Information to be included in development application

A development application must contain the following information:

(a) the name and address of the applicant,

(b) a description of the development to be carried out,

(c) the address, and formal particulars of title, of the land on which the development is to be carried out,

(d) an indication as to whether the land is, or is part of, critical habitat,

(e) an indication as to whether the development is likely to significantly affect threatened species, populations or ecological communities, or their habitats,

(f) a list of any authorities from which concurrence must be obtained before the development may lawfully be carried out,

(g) a list of any approvals of the kind referred to in section 91 (1) of the Act that must be obtained before the development may lawfully be carried out,

(h) the estimated cost of the development,

(i) if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the making of the application,

(j) a list of the documents accompanying the application.

2 Documents to accompany development application

(1) A development application must be accompanied by the following documents:

(a) a site plan of the land,

(b) a sketch of the development,

(c) a statement of environmental effects (in the case of development other than designated development),

(d) in the case of development that involves the erection of a building, an A4 plan of the building that indicates its height and external configuration, as erected, in relation to its site (as referred to in clause 56 of this Regulation),

(e) an environmental impact statement (in the case of designated development),

(f) a species impact statement (in the case of land that is, or is part of, critical habitat or development that is likely to significantly affect threatened species, populations or ecological communities, or their habitats),

(g) if the development involves any subdivision work, preliminary engineering drawings of the work to be carried out,

(h) if an environmental planning instrument requires arrangements for any matter to have been made before development consent may be granted (such as arrangements for the provision of utility services), documentary evidence that such arrangements have been made,

(i) if the development involves a change of use of a building (other than a dwelling-house or a building or structure that is ancillary to a dwelling-house):

(i) a list of the Category 1 fire safety provisions that currently apply to the existing building, and

(ii) a list of the Category 1 fire safety provisions that are to apply to the building following its change of use,

(j) if the development involves building work to alter, expand or rebuild an existing building, a scaled plan of the existing building,

(k) if the land is within a wilderness area and is the subject of a wilderness protection agreement or conservation agreement within the meaning of the Wilderness Act 1987, a copy of the consent of the Minister for the Environment to the carrying out of the development.

(2) The site plan referred to in subclause (1) (a) must indicate the following matters:

(a) the location, boundary dimensions, site area and north point of the land,

(b) existing vegetation and trees on the land,

(c) the location and uses of existing buildings on the land,

(d) existing levels of the land in relation to buildings and roads,

(e) the location and uses of buildings on sites adjoining the land.

(3) The sketch referred to in subclause (1) (b) must indicate the following matters:

(a) the location of any proposed buildings or works (including extensions or additions to existing buildings or works) in relation to the land’s boundaries and adjoining development,

(b) floor plans of any proposed buildings showing layout, partitioning, room sizes and intended uses of each part of the building,

(c) elevations and sections showing proposed external finishes and heights of any proposed buildings,

(d) proposed finished levels of the land in relation to existing and proposed buildings and roads,

(e) proposed parking arrangements, entry and exit points for vehicles, and provision for movement of vehicles within the site (including dimensions where appropriate),

(f) proposed landscaping and treatment of the land (indicating plant types and their height and maturity),

(g) proposed methods of draining the land.

55 What is the procedure for amending a development application?

(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.

(3) If the development application is for:


(a) development for which concurrence is required, as referred to in section 79B of the Act, or

(b) integrated development,

the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.

E. DETERMINATION OF THE QUESTIONS OF LAW

51. As I have earlier noted, there is some obvious overlap in the questions propounded by the Council and the Waterways Authority but more importantly, the questions need some reformulation so that they address the Applicant’s Motion seeking an order from the Court in the exercise of the power conferred by cl 55 of the Regulation to allow the Applicant to rely in the pending s 97 appeal upon the amended plans instead of the development plans that accompanied the original development application. This reformulation is necessary because the Applicant’s claim to rely upon the amended plans is wholly dependent upon it successfully invoking cl 55 of the Regulation because it is axiomatic that the Court, in discharging it statutory function in hearing and disposing of a planning appeal has no jurisdiction to determine a new development application. (It is to be recalled that the preliminary questions had all been formulated before the Applicant expressly invoked cl 55 of the Regulation).

52. However, as I understand the parties’ common approach, I am not, at this stage, asked to exercise the power conferred by cl 55, if it be held to be available in the present case, because the competing arguments have focussed exclusively upon the question whether that power is capable of being invoked in respect of the Applicant’s proposed amended development application.

53. In the light of these prefatory comments, I propose to determine the questions (but as I have reformulated them so that they specifically address cl 55 of the Regulation) in the following order—

(i) Council’s Question 1;

(ii) Waterways Authority’s Question 1;

(iii) A bracket of Waterways Authority’s Questions 2 and 3 and Council’s Question 2; and

(iv) A bracket of Waterways Authority’s Question 4 and Council’s Question 3.

(The questions I have bracketed essentially raise the same or very similar issues.)

Question 1 :Is the power conferred by cl 55 of the Regulation available in a case where the land to which the amended development application relates is different from the land to which the original development application relates?

54. It is to be noted at once that this question assumes a difference between the land to which the original development application relates and the land to which the amended development application relates.

55. However, in my judgment, the question does not truly arise on the facts of the present case. This is because it has not been established that there is any relevant difference in the land to which each development application (ie the original proposal and the amended proposal) relates.

56. The Council’s argument was entirely premised upon there being such a difference. Indeed, in the course of argument, the case was said to be close to the self evident proposition that a development application to carry out development on lot 1 can never be truly amended or varied so as to produce the result of the development being carried out, instead of on lot 1, on lot 2 (an entirely different factual and legal entity from lot 1). More precisely, it was said that the case was equivalent to an attempt to amend or vary a development application to carry out development on lot 1 so that it would be carried out on lot 1 and part of the adjoining lot (itself a separate factual and legal entity from lot 1).

57. However, although I was initially attracted to the Council’s argument, upon closer attention to the relevant facts of the present case, I am of the opinion that the Council’s argument is not supported by the facts and therefore the question posed is not the question that truly arises. The real question is whether the Applicant’s amended development application falls within the ambit of cl 55 of the Regulation.

58. Indeed, there is a fundamental flaw in the Council’s argument in that it confines “the land to which the development application (both in its original and proposed amended forms) relates” to the area of the sea bed of Rose Bay to be occupied by the respective building footprints. In other words, it treats the building footprint as if it were the development site (as I have earlier described those very familiar planning concepts) when in fact the concepts are essentially different and it is the broader concept of “development site” that is embraced by the statutory formula “land to which the development application relates”.

59. The Council’s argument seeks to avoid the flaw by inviting the Court to draw the ultimate inference from the primary facts and documentary evidence that the only land to which the Applicant’s original development application relates is that part of the seabed of Rose Bay that is to be physically occupied by the proposed building. The Council supports the drawing of such a ultimate inference by noting that apart from the reference in the Statement of Environmental Effects to “part of Certificate of Title Volume 5018 Folio 1” (which covers the entire seabed of Sydney Harbour) there is no defined legal description of the relevant land, there is no recognisable “curtilage” of the proposed development and there is no apparent land within the development application “within which the proposal can be relocated”.

60. But the argument begs the question as to what part of the land in the Certificate of Title forms the relevant parcel of land and how that part is constituted. Moreover, the documentary evidence contains contrary indications which support the drawing of a different ultimate inference from that urged by the Council, upon which its argument wholly depends.

61. In particular, it is noteworthy that the Waterways Authority, in granting consent, qua landowner, to the Applicant lodging the original development application did so expressly “as the owner of the land to which (the) development application relates” (vide letter of 12 January 2000), having first described the “premises” as “Waterway adjacent to Lyne Park, Rose Bay”. It had earlier noted (in its letter of 15 November 1999) that its consent was “conditional upon (the Applicant’s) agreement to enter into a lease to cover the total area of MMHC land” and that “the lease will be provided after construction is completed”. These expressions deliberately employed by the Waterways Authority in granting consent, qua landowner, connote a degree of flexibility both in respect of the area to be leased and in respect of the proper understanding of what is relevantly “the land to which the development application relates”. In particular, it is only after the development is constructed that the relevant lease will be granted, no doubt because it is only at that stage that the extent of physical occupation of the seabed and waters of Rose Bay will be ascertained.

62. Whereas it is obvious that the land to which the development application relates is not the whole of the sea bed of Sydney Harbour (being all of the land contained in Certificate of Title Volume 5018 Folio 1) it is tolerably clear that an apt verbal description of the relevant land was as stated in the Statement of Environmental Effects accompanying the development application, namely “the foreshore of Rose Bay adjacent to Lyne Park” which was the description (except that the word “Waterways” was substituted for “foreshore”) adopted by the Waterways Authority on behalf of the owner of all of the sea bed of Sydney Harbour when it signified its consent, qua land owner, to the lodging of a development application.

63. For all the foregoing reasons, I am not prepared to draw the ultimate inference from the documentary material that the land to which the Applicant’s original development application relates is confined to the sea bed of Rose Bay to be occupied by the proposed building’s footprint.

64. The consequence of this conclusion is that the major premise in the Council’s argument has not been established so that the question of law raised by the Council is simply not supported by the relevant facts, and is therefore a question that does not truly arise in the present case.

65. For completeness, I would add that Council’s variant argument that to “alter the location of the development so that it is outside the land, the subject of the original development application is not amending the development” likewise is not supported by the facts of the present case where some 75 per cent of the building footprint of the amended proposal is wholly contained within the footprint of the original proposal (as is demonstrated by the comparison of respective building outlines on the copy of the site plan being Annexure A hereto).

66. Thus, even to adopt a view of the facts most favourable to the Council’s argument (ie assuming the Council had established its major premise as an ultimate fact) the proposition that the Council would have to sustain in order to make good its argument is that the relocation of the proposed development so that some 25 per cent of its footprint is located on land adjoining the land upon which the 75 per cent is located, is necessarily beyond the power of amendment. In my respectful opinion, such an argument is simply not sustainable. There are two fundamental integers in a development application—(i) the proposed development; and (ii) the development site. The statutory power of amendment clearly is capable of applying to both integers.

67. As a general proposition, the relocation of a proposed development elsewhere within a given development site would clearly be a change to a proposed development ostensibly within the power of amendment or variation conferred by cl 55 of the Regulation. Again, as a general proposition, the fact that a relocation may involve a part of a development proposed for land, extending upon adjoining land, would not, per se, disqualify such a change to the proposed development from being within the ambit of an amendment or variation of the development application pursuant to cl 55 of the Regulation.

68. The application of these general propositions is more especially so on the facts of the present case where the whole of the sea bed of Rose Bay, in common with the whole of the sea bed of Sydney Harbour, is held by the one owner under a single Certificate of Title, where that owner has granted consent, qua owner, to the lodging of the Applicant’s development Application for the carrying out of development on the foreshores of Rose Bay because, in granting that consent, qua landowner, the Waterways Authority “must be taken to have intended the full development control process or course (including any appeal to this Court) under Part IV of the Environmental Planning and Assessment Act to apply to the development proposal”: see Royal Motor Yacht Club v Sutherland Shire Council (unreported 26 June 1987 per Bignold J) which was followed by Cripps CJ in Reeson v Warringah Shire Council (unreported 16 October 1990) and by Cripps CJ in Wharf 11 Pty Ltd v Sydney City Council (unreported 15 February 1991).

69. For all of the foregoing reasons, I hold that this question should be answered as follows:

Upon the found facts of the present case, the question does not truly arise and does not require to be answered.

Question 2: Are the amended plans of the proposed development so different from the original plans accompanying the development application as to constitute a new development application?

70. The parties have addressed this question upon the basis that the relevant law is propounded in my judgment in Ervin Mahrer v Strathfield Council (No 2) (2001) 115 LGERA 259 where I held that the power to amend or vary a development application conferred upon a consent authority by cl 55 of the Regulation was, by virtue of the LEC Act, s 39(2) available to this Court, in exercising its statutory jurisdiction of hearing and disposing of a planning appeal.

71. I also held that the true scope and ambit of the statutory power conferred by cl 55 of the Regulation was to permit a development application to be changed or altered resulting in an alteration, variation, or modification to the proposed development (see at 279) and that there was no legitimacy in superimposing upon that understanding of the scope and ambit of the statutory power any qualification that the change be “not radical” or “not substantially different” (see at 281).

72. For completeness, at 283/284 I also contemplated a meaning of the statutory power of amendment that was circumscribed or delimited so as to permit only an amendment “which did not convert the proposed development into something substantially different” or “fundamentally different in character” or “radically transformed”.

73. If I were to apply to the primary facts of the present case my principal holding in Ervin Mahrer as to the scope and ambit of the statutory power of amendment or variation conferred by cl 55 of the Regulation, I would unhesitatingly conclude that the amended development proposal was relevantly an alteration, variation or modification of the original proposal.

74. If I were to apply to the facts of the present case, the more circumscribed scope and ambit of the statutory power, as contemplated in Ervin Mahrer, I would likewise conclude that the amended proposal was not (i) substantially different from the original proposal or (ii) fundamentally different in character from the original proposal and (iii) did not radically transform the original proposal.

75. Accordingly, I would answer this question in the negative

Question 3: Has the landowner’s consent been granted to the Applicant’s amended development application?

76. Simply as a matter of fact, there is no evidence that the Waterways Authority has granted any consent to the Applicant’s proposed amended development application.

77. However, as a matter of law, it may be that the principle enunciated in the Royal Motor Yacht case operates in relation to the landowner’s consent granted to the lodging by the Applicant of the original development application so as to give it an additional operation in respect of any amendment or variation to that development application.

78. In Reeson Cripps CJ, citing the Royal Motor Yacht Club case, held that once an owner’s consent had been given for an application for development consent, “any amendments or modifications with respect to that development do not require the further consent of the owner”. In holding that that was the discernible intention of the legislation, his Honour referred to s 102 of the EP&A Act, which then allowed a development consent to be modified without the mandatory requirement that the consent of the owner of the land be given. (In this respect, it is to be noted that the current legislation now requires a modification application under the EP&A Act, s 96 to be made with the written consent of the land owner: vide cl 115(1)(h) of the Regulation).

79. In his later decision in Wharf 11 Pty Ltd v Sydney City Council (unreported 15 February 1991) Cripps CJ had to decide whether the Court was precluded from granting development consent in a pending planning development appeal because the Maritime Services Board, which as land owner had consented to the lodging of a development application, subsequently notified the Council that it no longer consented to the development application.

80. In deciding that the Court was not so precluded by that circumstance, Cripps CJ adopted the same reasons that I had given for my decision in the Royal Motor Yacht Club case.

81. His Honour then expressed the following opinion on the legislative purpose of requiring landowner’s consent to be given to a development application made in respect of land not owned by the Applicant:

The legislation provides that a development application must be accompanied by the consent of the owner of the land on which the development is to take place. It appears to be assumed that the legislative purpose will be frustrated and that owner will be badly dealt with if they are not permitted to terminate the development consent process by withdrawing consents. A development consent raises a regulatory prohibition, namely, that development cannot be undertaken unless consent is given by a local authority. A development consent does not authorise development. Generally speaking, the process is not concerned with relations between owners and other people who wish to implement the development consent. The fact that a development consent runs with the land does not carry with it the notion that once a development consent has been granted the development can be undertaken on the land against the wishes of the owner. The submission suggesting a hardship to an owner by the Court determining that once his consent has been given it cannot effectively be withdrawn dissolves when the true nature of a development consent is understood.

82. I would respectfully agree with that opinion, especially in its differentiation of the rights of the landowner (i) to consent to another person lodging a development application; and (ii) to ultimately determine whether development sanctioned by a development consent may be carried out on the land. The EP&A Act protects only the former right of the landowner, the latter right being adequately protected by the law of real property.

83. Since, in view of my answer to the next question, it is not strictly necessary for me to determine whether the consent of the Waterways Authority operates additionally in respect of the proposed amended development application, I will reserve the question and subject to that reservation, I would hold that the Waterways Authority has not granted consent to the Applicant’s proposed amended development application.

84. Accordingly I would answer the question as follows:

Subject to the operation in law of the consent granted by the landowner to the lodging of the development application, the landowner has not consented to the amended development application.

Question 4: Is the consent of the landowner required under the Regulation to the Applicant’s proposed amended development application?

85. In my judgment, it is clear that there is nothing in the express provisions of the EP&A Act or the Regulation that requires landowner’s consent to an amendment or variation of a development application granted pursuant to cl 55 of the Regulation.

86. There is an express requirement for landowner’s consent to the lodging of a development application by a person who is not the owner of the land to which the development application relates (vide cl 49) and there is a similar requirement for landowner’s consent in respect of an application to modify a development consent where the applicant is not the “owner of the land on which the development is to be carried out” (vide cl 115(1)(h).

87. In contrast to these express requirements, cl 55 imposes no such or similar requirement. Instead, it permits “the applicant” to amend or vary a development application (but only with the agreement of the consent authority)

88. There is, in these circumstances, no justification, to seek to imply into the entitlement vested in an applicant that is created by cl 55, a requirement for land owner’s consent in a case where the applicant is not the owner of the land to which the development application relates.

89. Nor do I think that there is any legislative gap or omission in cl 55. On the contrary, the Regulation appears to have been drafted in recognition of the principle established by the decisions of this Court that I have earlier referred to (commencing with the Royal Motor Yacht Club case) that where a landowner has relevantly consented to the lodging of a development application in respect of its land, it is to be taken as intending the full development assessment process or course contained in the EP&A Act, Part 4 and Part 6 of the Regulation, to apply to that development application. Such process or course clearly includes the amendment, or variation of the development application by the applicant, in accordance with cl 55 of the Regulation.

90. For all of the foregoing reasons, I answer this question in the negative.
F. CONCLUSIONS AND ORDERS

91. It follows from my determinations of the reformulated questions of law that the Applicant’s proposed amended development application falls within the scope and ambit of the power of amendment or variation conferred by cl 55 of the Regulation and that it is within this Court’s competence and jurisdiction to permit the Applicant’s development application to be so amended and if so permitted, to entertain the amended development application in the present class 1 proceedings, notwithstanding the absence of any specific consent of the Waterways Authority to that amended development application.

92. For all of the foregoing reasons, I make the following orders—

1. The Waterways Authority be joined as a party in respect of the separate hearing of the preliminary questions of law raised by it and by the Council.

2. The question of joinder as a party otherwise than is provided by Order 1 is reserved with liberty to apply on 3 days’ Notice

3. The preliminary questions of law as reformulated be determined as follows:

Question 1 —Is the power conferred by cl 55 of the Regulation available in a case where the land to which the amended development application relates is different from the land to which the original development application relates?


Answer—Upon the found facts of the present case, the question does not truly arise and does not require to be answered.

Question 2—Are the amended plans of the proposed development so different from the original plans accompanying the development application as to constitute a new development application?


Answer—No

Question 3—Has the landowner’s consent been granted to the Applicant’s amended development application?


Answer—No - subject to reserving the question as to the operation in law of the consent granted by the landowner to the lodging of the development application.

Question 4—Is the consent of the landowner required under the Regulation to the Applicant’s proposed amended development application?


Answer—No.

4. To the extent that any of the preliminary questions as originally formulated may require further determination beyond that provided in Order 3, liberty is granted to apply on 3 days’ notice.

5. The determination on the merits of the Applicant’s Notice of Motion seeking leave to rely upon the amended development application is reserved with liberty to restore on 3 days’ notice.

6. Question of costs is reserved.

7. Substantive proceedings are stood over to Registrar’s callover on 3 December 2002.