Urbis Pty Ltd v Sutherland Shire Council
[2001] NSWLEC 147
•07/11/2001
Land and Environment Court
of New South Wales
CITATION: Urbis Pty Ltd v Sutherland Shire Council [2001] NSWLEC 147 PARTIES: APPLICANT:
RESPONDENT:
Urbis Pty Ltd
Sutherland Shire CouncilFILE NUMBER(S): 10774 of 2000 CORAM: Talbot J KEY ISSUES: Practice & Procedure :- Amended plans - whether they may be treated as an amendment of the development application - leave granted on terms
Construction & Interpretation :- Whether new plans are amended plans for the purpose of cl 55 Environmental and Planning Assessment Regulation 2000LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation - cl 55
Land and Environment Court Rules 1996CASES CITED: Ervin Mahrer and Partners v Strathfield Municipal Council [No 2] [2001] NSWLEC 140, unreported;
R v Shanahan & Ors; Ex Parte Northern Territory Planning Authority (1984) 54 LGRA 255;
Ross Karp & Associates Pty Limited v Randwick City Council (1999) 106 LGERA 397;
Toadolla Company Pty Ltd v Dumaresq Shire Council [1992] NSWLEC 129;
Willoughby Municipal Council v Manchil Pty Limited (1974) 29 LGRA 303DATES OF HEARING: 5 July 2001 DATE OF JUDGMENT:
07/11/2001LEGAL REPRESENTATIVES:
APPLICANT:
Mr C W McEwen (Barrister)
SOLICITORS
Mallesons Stephen Jaques
RESPONDENT:
Ms S A Duggan (Barrister)
SOLICITORS
Sutherland Shire Council
JUDGMENT:
IN THE LAND AND Matter No. 10774 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 11 July 2001
Respondent
1. At the conclusion of submissions in this matter and at the request of the parties I made orders and directions for the future conduct of these proceedings, giving a brief indication of the reasons for doing so on the basis that a full and comprehensive set of reasons would be published as soon as practicable.
2. The class 1 appeal was commenced by the filing of an application on 11 August 2000. The appeal was based upon the deemed refusal of a development application lodged with the council in March 2000.
3. A set of plans accompanied the application.
4. A draft statement of issues was filed on the 5 September. A final statement of issues was filed on the 9 October 2000.
5. On 6 September 2000 the matter was set down for hearing on 18 to 22 December 2000. The dates were vacated on 28 October 2000.
6. Further dates for hearing were set down on 20 March 2001 and the matter is currently listed to be heard over four days from 7 August 2001.
7. In the meantime, in response to traffic issues, the parties jointly commissioned a safety audit by an independent traffic consultant. The outcome of the safety audit was available to the parties when the Court set the matter down for hearing in August.
9. In a letter lodged in support of the amended plans the amendments are described as follows:-8. On 16 May 2001 the applicant lodged a set of amended plans with the council indicating that it proposed to rely upon the amended drawings at the hearing.
- 1. Vehicle access arrangements have been altered to:
_ Relocate and redesign (including extension of length to 55 metres) of the deceleration lane to provide ingress to the site from Princes Highway.
_ Provide a new egress point to Princes Highway close to the northern boundary of the site.
_ Redesign the left turn and median arrangements for access from Princes Highway into Wilson Parade which will be carried out by the RTA.
_ Remove reference to the construction of a right turn bay in Wilson Parade.
- 2. Consequential alterations to the proposed restaurant building, being:
_ Change to the shape and layout of the building, with no change to the building size or seat numbers.
_ Relocation of terrace areas and the service corral.
_ Maintaining on site car parking well in excess of minimum requirements, while reducing parking provision from 53 to 45 spaces.
_ Removal of the coach parking bay.
_ Alteration of car parking and driveway arrangements.
_ Alteration to site landscaping, including increasing landscaping the width and length of the landscape strip along Princes Highway frontage, in the south-east corner of the site and in the central part of the site immediately south of the proposed restaurant building.
_ Retention of additional existing trees in the central part of the site.
- 3. Alterations to proposed signage, being:
_ Provision of a ‘monument sign’ located on the splay of the site at the intersection of Princes Highway and Wilson Parade.
_ Alteration of signage locations to reflect changed site layout.
10. The council has not seen fit to consent to the applicant relying on the amended plans. Accordingly, a notice of motion seeking leave to do so was returned before me as Duty Judge on 4 July 2001.
11. Mr McEwen, who appears for the applicant, has informed the Court that the recommendations made by the consultant in the safety audit have been incorporated in the amended plans. Some of the changes relate to access to the property from the Princes Highway and Wilson Parade. Other changes relate to the location of trees on the site. Although the layout has been redesigned, Mr McEwen submits that the development is still a take-away McDonalds restaurant providing seating, parking and a drive through facility. It is the applicant’s contention that the reorientation of the site does not lead to a new development application.
12. On behalf of the council, Ms Duggan submits that the amendments must be considered in the context of the applicable legislation and the circumstances of the change. The development is advertised development. Furthermore, the council contends that the development is integrated development.
13. The council argues that the amendments give rise to a new or fresh consideration of issues that did not arise from the original set of plans lodged in support of the development application.
14. More particularly, Ms Duggan refers to the location and length of the proposed slip lane to facilitate a left turn into the site from the Princes Highway; the new egress and ingress arrangements in Wilson Parade and the Princes Highway; a reduction in the number of car spaces; changes to the footprint of the building and significant alterations to internal traffic flow arrangements within the site. As a consequence of those changes it has become necessary, Ms Duggan says, to embark on a new and fresh inquiry.
15. Ms Duggan submits that as it is necessary to recast the approach to the consideration of the development application, then that is to be regarded as a manifestation of the extent of fact and degree that should drive the Court to a conclusion that the proposal now relied upon by the applicant is a new application. The question which the council urges the Court to ask is to be framed against the continuing relevance of the supporting information lodged in support of the original development application. In this case, the council claims that the information provided in relation to traffic, internal circulation and parking will be rendered irrelevant and redundant following reliance upon the amended plans.
16. If the Court is nevertheless satisfied that the latest plans can truly be regarded as an amendment then the council raises issues of discretion in respect of the late submission of the plans, the constrained time remaining to comply with the requirements of the regulations and the applicable Development Control Plan in respect of amendments to advertised development and the inability to file and serve evidence in accordance with the Land and Environment Court Rules, following consideration of further submissions, after the amended plans have been exhibited. Ms Duggan also points to the obvious disruption to the council’s preparation for the hearing and the costs thrown away in dealing with the original plans.
17. If the Court is disposed to grant leave to the applicant for it to rely upon amended plans, then the council submits that leave should be granted subject to conditions which recognise the additional burden placed upon the council and its witnesses.
18. Mr McEwen urges the Court to first look at the fact of the changes in the context of the surrounding circumstances of the development application, and the category or character of the development, before looking at the degree of the relevant change. When this is done, he says, it is apparent that changes are primarily alterations to the internal circulation of traffic within the site and the associated points of egress and ingress.
19. In the course of argument the parties made reference to the recent decision of Bignold J in Ervin Mahrer and Partners v Strathfield Municipal Council [No 2] [2001] NSWLEC 140, unreported. In His Honours’ typically thorough and comprehensive way, Bignold J identified and examined the sources of the amendment power and then provided his interpretation of the amendment power created by cl 55 of the Environmental Planning and Assessment Regulation 2000 (‘the EP&A Regulation”).
20. His Honour discerned no conflict or collision between the provisions of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) and the EP&A Regulation enabling development applications to be amended and those provisions requiring public notification of development applications (including amended applications)( Ervin Mahrer at par 120).
22. His Honour chose to regard the amendment power created by cl 55 in the following terms:-21. After considering earlier decisions of this Court, in particular Ross Karp & Associates Pty Limited v Randwick City Council (1999) 106 LGERA 397 and Toadolla Company Pty Ltd v Dumaresq Shire Council (1992) NSWLEC 129 and earlier decisions of other courts dealing with similar statutory provisions, namely Willoughby Municipal Council v Manchil Pty Limited (1974) 29 LGRA 303 and R v Shanahan & Ors; Ex ParteNorthern Territory Planning Authority (1984) 54 LGRA 255, His Honour found that there was nothing in the course of those authorities that would suggest “the displacement or modification of the plain meaning of cl 55”. His Honour rejected previous qualifications to the nature of the change to be regarded as an amendment, such as “radical” or “substantially different” .
- A development application may be changed or altered resulting in an alteration, variation [or] modification to the proposed development.
23. As a question of interpretation, with great respect, I agree with the broad interpretation of cl 55 adopted by Bignold J.
24. Nevertheless, I think in applying that construction, questions of fact and degree do arise and, in turn, they are to be considered, as Mr McEwen submits, in the context of the surrounding circumstance of the development application and the category or character of the development. Such an approach could lead to a conclusion that, in a particular case, the amended proposal is, in truth, a new application.
25. Applying the above principles to the circumstances of this case, I am satisfied that the amended plans upon which the applicant now seeks to rely relevantly amend the development application by re-orientating what is essentially the same development on the site and re-configuring the traffic arrangements. Moreover, the amended application has the same essential underlying characteristics as the ingredients of the original development application.
27. Directions and orders were made as follows:-26. It is appropriate, however, that the council be given the proper opportunity to deal with the amendments in accordance with its statutory obligations and further that it not be constrained in its preparation for the hearing. Obviously costs will be thrown away in respect of expenses incurred by witnesses preparing for a hearing on the basis of the original plans and there may also be legal costs that have been wasted. I have therefore made orders vacating the hearing dates, on terms. I do not agree with the submission made on behalf of council that the applicant pay to council a specified lump sum, by way of reimbursement of its expenses incurred, based on an arbitrary assessment. I have made orders that enable costs to be determined in the conventional manner.
1. Leave granted for applicant to rely upon amended plans.
2. The applicant to file and serve all further supporting material by 19 July 2001.
3. Hearing dates 7, 8, 9 and 10 August 2001 are vacated.
5. The applicant pay the respondent’s costs thrown away in the course of preparing for a hearing on the basis of the original plans, including witness expenses.4. The applicant pay the respondent’s costs thrown away by vacation of the hearing dates.
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