Yassine Holdings Pty Ltd v Burwood Council

[2015] NSWLEC 1559

Land and Environment Court

New South Wales

Medium Neutral Citation:	Yassine Holdings Pty Ltd v Burwood Council [2015] NSWLEC 1559
Hearing dates:	20 February 2015
Date of orders:	20 February 2015
Decision date:	20 February 2015
Jurisdiction:	Class 1
Before:	Registrar Gray
Decision:	Leave granted to rely on amended plans
Catchwords:	AMENDED PLANS – whether amendment was a new development application – whether leave should be granted
Legislation Cited:	Environmental Planning and Assessment Regulation 2000
Cases Cited:	Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292 Australian Enterprise Holdings Pty Ltd v Camden Council (2010) 173 LGRA 226 Pepperwood Ridge v Newcastle City Council [2007] NSWLEC 19 Yassine Holdings Pty Ltd v Burwood Council [2015] NSWLEC 1023
Category:	Consequential orders (other than Costs)
Parties:	Yassine Holdings Pty Ltd (Applicant) Burwood Council (Respondent)
Representation:	Counsel:     Solicitors: Wilshire Webb Staunton Beattie (Applicant) Marsdens Law Group (Respondent)
File Number(s):	10744 of 2014
Publication restriction:	No

Judgment ON NOTICE OF MOTION

1. REGISTRAR:  This matter came before me following a Notice of Motion having been filed by the applicant in the proceedings seeking leave to rely on amended plans. The development, the subject of the appeal, was made originally to the Council on 3 July 2014.  Following the expiry of the deemed refusal period for the application, an appeal was lodged to this Court on 16 September 2014.

2. Following the lodgement of that appeal an amendment to the Burwood LEP was made, such that the height limit for the area was reduced, as well as making changes to the maximum floor space ratio.

3. Whilst there are savings provisions in the new LEP, obviously the amending controls are a relevant and significant consideration in the Court's determination of the development application.  The Notice of Motion seeking leave to rely on amended plans is made in light of those changes in controls, and also in order to deal with the Council's contentions raised in the proceedings and the subject of discussions at the conciliation conference.

4. There are quite significant changes that are proposed in the amended plans.  Those changes can be summarised as being a reduction in the height of the proposed development from around 28 metres to 19 metres, a reduction in the number of storeys from nine to six, a change in the floor space ratio from 2.92:1 to 1.68:1, a reduction in the number of units from 57 to 37, the deletion of a basement, increase in setbacks, and resulting changes to internal configurations and the number of units.

The Court’s power to grant leave

5. It is well established that the Court has the power to grant leave to an applicant to rely on amended plans as a result of cl 55 of the Environmental Planning and Assessment Regulation 2000, and the case law in dealing with cl 55 is also quite clear.

6. In Ebsworth v Sutherland Shire Council [2005] NSWLEC 603, Talbot J was of the view that "[a] broad approach to the application of reg 55 is therefore appropriate".

7. In Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292 at [8], Jagot J agreed with the decision of Talbot J on the broad approach and said the following:

I also consider that a broad approach to both the scope and application of cl 55 is appropriate. Clause 55 enables any application to be amended or varied with the agreement of the consent authority at any time prior to determination. An amendment or variation, as cl 55(2) contemplates, may result in change to the proposed development. The extent of change able to be authorised by agreement of the consent authority or by the Court exercising that function on appeal...will depend upon the facts of the particular case.

8. Her Honour further said that:

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

9. In considering those two cases, Pepper J, in Australian Enterprise Holdings Pty Ltd v Camden Council (2010) 173 LGRA 226 at [31] and [32], referred to Jagot J's decision in Radray and said:

[31] Her Honour held that while the amendments or variations proposed by the applicant in that case would lead to a "changed development" they did not convert the application into an original application because "the essence" of the development remained the same. Accordingly, the amendments did not fall outside the scope of cl 55 and there was power to agree to the amendment or proposed variation.

[32] While her Honour recognised that cl 55 does not extend to allowing the Court, on a merits appeal, to entertain an original development application, Jagot J nevertheless was at pains to emphasise that the beneficial and facultative clause ought to be construed so as to give it the widest possible interpretation that its language would permit.

Submissions

10. The applicant submits, in light of this case law, that having regard to the proposed amendments to the plans the essence of the development remains the same. In particular, the applicant submits that the Court ought not consider that the changes made to the development application are such to render it an original application, given that the essence as a residential flat building has not changed.

11. Similarly, the applicant submits that the podium form of structure with units above has similarly not changed. Whilst the applicant concedes that there have been changes to the number of storeys, the number of units and the floor space ratio, its essence as a multi‑level residential flat building in much the same site building envelope is the key, and the Court ought to have regard to that in considering that the amendments merely make changes to the development rather than rendering it an original development application.

12. Further, the applicant submits that it is a residential building sitting on essentially the same footprint but with reduced height.  The externalities of the architectural features are but ancillary elements rather than part of the fundamental essence of the application.

13. The respondent, however, submits that, in looking at the facts of the individual case, there must be a point at which significant changes in the layout and the design of a development are such that the development application cannot be considered to be changed, but rather renders the development application to be a new application for which the Court has no jurisdiction.

14. In that respect, the respondent has drawn my attention to the reasons of Talbot J in Pepperwood Ridge v Newcastle City Council [2007] NSWLEC 19 at [35]:

... However, having regard to the overall concept I am not convinced that the substantial changes to the layout, specification and configuration of the proposed buildings are such that the proposal submitted in August 2006 can be regarded as an amendment or variation of the original development.  It is in truth a new and conceptually different proposal which bears little resemblance to the original except in its overall description of the type of the development.

15. It is submitted on behalf of Council today that the extent of the amendments made in the development application that is currently before the Court are such that they cannot be regarded as a variation of the original development.

16. In particular, the Council submits that, given that there are substantial changes to the layout, in fact it is an entirely new layout, and that it even has a different appearance or facade as can be seen from the eastern elevation.  The Council submits that, in light of that, a fresh assessment is required by the Council and that the proposal in fact could be considered a new building.  It is submitted on behalf of the Council that the development would be, under the amended plans, a new development that the Court has no jurisdiction to entertain.

Consideration

17. I accept that the amendments make significant changes to the application. In considering whether the amendments are such that they render the development application to be one that is a new or original development application, it seems to me that the question that I ought to consider is whether, on the facts of this application, the significant amendments to the building - in terms of its height, floor space ration, the number of units, and changes to the way the building looks - are such that those amendments render the application to be an original development application.

18. In my view, they do not.  The site is the same and the nature of the development as a residential flat building remains the same.  Whilst there have been changes to the floor space ratio, height, number of floors, setbacks, and, therefore, resulting changes in unit numbers, floor layouts and car spaces, the essence of the proposed development remains the same.

19. In that respect, my reasons reflect those of Commissioner Tuor in Yassine Holdings Pty Ltd v Burwood Council [2015] NSWLEC 1023 (17 February 2015).

20. I am of the view that an approach consistent with Commissioner Tuor's decision is appropriate. Although I am not bound by a decision of the Commissioner, it is appropriate for the Court to take a consistent approach when looking at the facts of very similar cases.  It would make it very difficult for parties to consider their options if the Court were to take inconsistent approaches where the facts are substantially the same.

21. In that regard, I am of the view that the proposed amendments fall within the Court's broad power under cl 55 and I, therefore, must consider the discretionary matters in relation to whether I ought to grant leave to the applicant to rely on amended plans.

22. Although no submissions were made in that regard, other than the applicant's submission that the plans are responsive to the issues raised in the proceedings and to the issues raised by the new LEP, I am also of the view that I ought to have regard to the point in the proceedings when the application for leave to rely on amended plans is made.  In my view, it is entirely appropriate that I grant leave to the applicant to rely on amended plans given that the application is made after the s 34 conference and before the hearing, and in light of the fact that they are responsive to the issues raised by the council as well as the issues that are raised in relation to the new LEP.

23. As a result, I will grant leave to the applicant to rely on amended plans and make order 1 of the Notice of Motion filed on 23 January.

24. I make orders in accordance with the Short Minutes of Order and list the matter for hearing on 21 and 22 April 2015 to commence with an on‑site view at 9.30 am.

**********

Decision last updated: 08 January 2016