Seeto v Marrickville Council

[1999] NSWLEC 70

Land and Environment Court

of New South Wales

CITATION:	Seeto - V - Marrickville Council [1999] NSWLEC 70
PARTIES	APPLICANT: SEETO
RESPONDENT: MARRICKVILLE COUNCIL
NUMBER:	10802 of 1998
CORAM:	Lloyd J
KEY ISSUES:	:- Question of law - amendment of application
LEGISLATION CITED:	Question of law - amendment of application
DATES OF HEARING:	02/02/1999
EX TEMPORE JUDGMENT DATE:	02/02/1999
LEGAL REPRESENTATIVES:	Applicant: P R Clay Solicitors: Adams & Associates Respondent: G A Christmas Phillips Fox

JUDGMENT:

1. This is the determination of a preliminary question of law raised by the respondent. The determination of the question separately from any other question is made pursuant to the Supreme Court Rules Pt 31 r 2(1) which applies to this Court by dint of the Land and Environment Court Rules Pt 6 r 1(1).

2. T he question of law is framed as follows:

"Whether the application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 the subject of these proceedings may be lawfully amended in the manner sought by the applicant or whether such an amendment must be by way of a new application to the respondent".

3. The relevant facts may be briefly described. The property the subject of these proceedings is known as 292 Stanmore Road, Petersham. The property is within a residential A zone under the Marrickville Planning Scheme Ordinance. A two storey building used for the purpose of a hotel is situated on the property. The use of the property for the purpose of a hotel is authorised by a development consent granted by the respondent on 17 March 1993. Condition 6 of the development consent restricts the hours of operation of the hotel to between the hours of 9am to 12 midnight Mondays to Saturdays and 9.30am to 8pm on Sundays.

4. The applicant lodged with the respondent on 16 July 1998 an application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 to modify condition 6 of the development consent. The modification application sought to modify condition 6 to permit the whole of the hotel to operate from 9am to 3am the following day on Mondays to Saturdays and 9.30am to 12 midnight on Sundays and public holidays.

5. The modification application was notified in accordance with the council's policy and 33 written submissions were received. The application for modification was refused by the respondent and the applicant has now appealed to this Court under s 96(6) of the Environmental Planning & Assessment Act .

6. The applicant now seeks to amend the modification application to provide that only a part of the ground floor of the hotel operate from 9am to 3am (on the following day) on Mondays to Saturdays and 9.30am to 12 midnight on Sundays and public holidays. The amendment proposed by the applicant has not been notified in accordance with the council's policy.

7. The answer to the question which I am asked to determine is governed by the Court's powers on an appeal; in particular those set out in the Land and Environment Court Act 1979 s 39. Subsections (2) and (3) of s 39 provide:
"(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal."

8. In considering similar legislation in Cambridge Credit Corporation Limited v Parkes Developments Pty Limited (1974) 2 NSWLR 590 Hope JA held at 598-602 that the question whether an amendment amounts to a new application depends on whether the development in its amended form differs in any material respect from the application so as to amount to a fresh application. Hutley JA held likewise (at 612-613). On an appeal to the Court the Court may ultimately decide whether a revised application must be renotified and readvertised.

9. Similarly in Willoughby Municipal Council v The Local Government Appeals Tribunal and Manchil Pty Limited (1974) 2NSWLR 415 Samuels J, also considering similar legislation, said (at 420):

"Hence, to put it succinctly, the board can do what the council could have done. But it can exercise its powers so conferred only 'for the purposes of hearing and determining an appeal'. It has no jurisdiction to entertain an original application. It can consider only the application which was before the council. But this does not mean that it is confined to precisely the same material as that which was before the council. In the nature of things a board will ordinarily have before it material which the council never considered. A council plainly has the power to permit amendment of a plan initially submitted under cl 31(1)(b) and the board has the same power.

It follows that the submission made cannot succeed unless the amendment to the plan made in November 1973 converted what was then before the board into a fresh application".

And then a little later his Honour said (also at 420):

"There may, of course, be occasions when an amendment to plans are so significant as to convert the original concept into something substantially different. But, having considered the alteration made I do not consider that this is such a case".

10. Although the preliminary question which I am asked to determine is said to be a question of law, it is essentially a question of fact. The question of fact is whether the proposal in its amended form differs from what was before the respondent to such an extent as to convert it into a fresh application.

11. Although this is essentially a question of fact rather than a question of law, the parties have argued it before me and I am prepared to answer it. The application as sought to be amended in my view does not convert the proposal into an original application. The amendment retains the proposed change in operating hours but limits the change to a particular part of the building. It is essentially a change in detail. It is thus a revision of one particular aspect of the application but it is not a complete revision. It does not convert the original concept into a fresh application.
12. This is illustrated, I think, by the fact that if the applicant were to pursue the original application there is nothing to prevent it from voluntarily shutting down the hotel earlier than the permitted hours, or from voluntarily shutting down particular parts of the hotel earlier than the permitted hours. The permitted hours are the hours outside which the hotel must not be open. But the operator of a hotel is not compelled to operate for the full permitted hours.

13. Accordingly I answer the preliminary question by stating that the amendment to the application may be lawfully made and considered by the Court. The application is stood over to the Registrar's list 9am on 10 February for directions.

I certify that this and the 4 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate
Dated: 02/02/99