Land and Environment Court New South Wales Medium Neutral Citation: Malass v Strathfield Municipal Council [2021] NSWLEC 115 Hearing dates: 25 October 2021 Date of orders: 26 October 2021 Decision date: 25 October 2021 Jurisdiction: Class 1 Before: Robson J Decision: See orders at [52]-[53] Catchwords: CIVIL PROCEDURE — notice of motion to amend plans and documents in development application — cl 55 Environmental Planning and Assessment Regulation 2000 (NSW) — discretion — s 39 Land and Environment Court Act 1979 (NSW) — notice of motion granted Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), Sch 5, ss 8.7, 8.18, 8.25, 9.34 Environmental Planning and Assessment Regulation 2000 (NSW), cl 55 Land and Environment Court Act 1979 (NSW), s 39 Uniform Civil Procedure Rules 2005 (NSW), r 49.19 Cases Cited: Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260 National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315; [2002] NSWCA 273 Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80 Strathfield Municipal Council v Malass [2021] NSWLEC 112 Category: Procedural rulings Parties: Sarah Malass (Applicant) Strathfield Municipal Council (Respondent) Representation: Counsel: R White (Applicant) G Farland (Respondent) Solicitors: Project Lawyers (Applicant) Bartier Perry Pty Limited (Respondent) File Number(s): 2020/00291053; 2021/00069569; 2021/00069575 Publication restriction: Nil Judgment 1. By notices of motion filed on Friday 22 October 2021, Sarah Malass ('applicant') seeks orders that she be allowed to rely upon amended plans and documents in three discrete Class 1 proceedings, each scheduled to commence a concurrent three-day hearing on Tuesday 26 October 2021 (continuing on 27 October and 8 November 2021). Strathfield Municipal Council ('Council'), the respondent in each of the Class 1 proceedings, opposes the orders. 2. The hearing of the motions proceeded before me as Duty Judge at 2pm yesterday, Monday 25 October 2021. Mr R White of counsel appeared for the applicant and Mr G Farland of counsel appeared for Council. 3. At the completion of the hearing, given the urgency of the orders sought by the applicant, I gave orders effectively allowing the applicant to rely upon the amended plans and documents in one of the Class 1 proceedings, and vacating the first two days of the hearing (only), and listing the hearing for a further day on 10 November 2021 for the three Class 1 proceedings. I indicated that I would provide reasons today. These are those reasons. Background 1. As the background facts to the three Class 1 proceedings are both unusual and relatively uncontentious, they require some explication prior to considering the respective positions of the parties in relation to the motions. 2. Each of the Class 1 proceedings relates to work undertaken at Lot 62 in Deposited Plan 15955, known as 27 Boden Avenue, Strathfield ('Land'). On 22 November 2017, Development Application No. 2017/91/1 was approved by Council, providing for the demolition of existing structures and the construction of a new two-story dwelling with basement parking and swimming pool on the Land. 3. As a result of significant building works being undertaken on the Land not in accordance with that development consent, on 14 September 2020, Council issued a development control order pursuant s 9.34 and Sch 5 of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') requiring the applicant to cease all development work immediately. 4. The development control order was later partially stayed by the Court so that specific works could be carried out, with that stay being granted subject to a condition requiring the applicant to make a development application and a building information certificate application. 5. The applicant thereafter lodged an application for a building information certificate with Council on 11 December 2020 in relation to certain works that had been undertaken on the Land which were not in accordance with the existing development consent. 6. The applicant also lodged Development Application No. 2020/239/1 (the 'development application') with Council on 13 January 2021 seeking consent for, first, the prospective use of the Land for the purpose of a dwelling house including the use of the building and structures that had been erected on the Land; and second, for additions and alterations to the dwelling including works required to complete the works that had been undertaken on the Land. 7. Council refused the development application on 5 March 2021 and the application for a building information certificate on 9 March 2021. 8. As a result of the above, the applicant has commenced three separate Class 1 appeal proceedings in this Court. 9. First, on 9 October 2020, the applicant commenced proceedings 2020/00291053, being an appeal pursuant to s 8.18 of the EPA Act against the development control order issued by Council on 14 September 2020. 10. Second, on 11 March 2021, the applicant commenced proceedings 2021/00069569 being an appeal pursuant to s 8.7 of the EPA Act relating to Council's refusal of the development application. 11. Third, on 11 March 2021, Council commenced proceedings 2021/00069575, being an appeal pursuant s 8.25 of the EPA Act in relation to Council's refusal of the application for a building information certificate. 12. On 20 March 2021, the Court made orders consolidating the three Class 1 proceedings, and providing that evidence in each of the proceedings shall be taken to be evidence in the other proceedings. 13. I record that although there are three notices of motion for hearing before me, it is common ground that the relief sought effectively only relates to proceedings 2021/00069569 in relation to Council's refusal on 5 March 2021 of the development application (which for convenience, I shall refer to as the 'present motion'). 14. Although not directly relevant to the motions before me, Council commenced Class 4 proceedings against the applicant on 2 August 2021, seeking declaratory and consequential relief regarding works carried out on the Land in breach of the development control order. The background to those proceedings is noted in a recent judgment of Pain J in Strathfield Municipal Council v Malass [2021] NSWLEC 112 and is not repeated. 15. Finally, for context and to understand one of Council's concerns considered below, I note that by notice of motion filed 19 October 2021 in proceedings 2020/00291053, but referring to all three Class 1 proceedings, the applicant also sought leave to rely on amended plans and documents in the Class 1 proceedings ('previous motion') in substantially similar terms to that sought in the present motion. The Acting Assistant Registrar refused the previous motion (with reasons) after hearing the motion last Friday, 22 October 2021. It is relevant to note (as I consider below) that no notice of motion for a review of that decision pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') has been filed. 16. That same day as the previous motion was refused, the motions now before me were filed by the applicant. The three motions are identical in terms and seek leave to leave to rely on: 1. Architectural Plans prepared by AE Design Pty Ltd and identified by their drawing number, sheet name, issue, and date; 2. Landscape Plans prepared by Fluid Design dated 21 October 2021; 3. Structural Report prepared by AusPacific Engineering (undated) ('Structural Report'); and 4. Survey Plan prepared by GK Wilson & Associates dated 30 August 2021. Evidence 1. The applicant read the affidavit of Mark Hanna affirmed 22 October 2021. In passing, I note that Mr Hanna had affirmed an earlier affidavit on 19 October 2021 which was read before the Acting Assistant Registrar in relation to the previous motion. In his affidavits, Mr Hanna outlined the background to the Class 1 proceedings and the circumstances that led to the application to rely on the amended plans and documents; summarised the amendments for which the orders were sought; and provided (as Annexure "A") a Schedule of Amendments, which described the various amendments with respect to nine drawings including: Site Plan (Sheet A020); Plan – Demolition (Sheet A021); Plans – Basement + Ground (Sheet A111); Plans – First + Roof (Sheet A112); Sections (Sheet A201); Elevations (Sheet A301); Street Elevation (Sheet A311); and View from the Sun (Sheet A601) and Shadow Diagrams (Sheet A611). 2. The applicant also tendered the joint report of the planning experts, Stuart McDonald (on behalf of the applicant) and Brett Daintry (on behalf of the respondent) dated 31 August 2021, and the joint expert flooding report by Joe Bacha (on behalf of the applicant) and Richard Dewar (on behalf of the respondent) dated 1 September 2021. 3. Council read the affidavit of Dennis Andy Loether sworn 21 October 2021. Mr Loether's affidavit was primarily prepared for the previous motion, however, it was read by Council in relation to the present motion. Mr Loether detailed the background to the Class 1 proceedings and the various communications that had passed between the parties. Mr Loether deposed that Council was opposed to the orders sought in the motions, primarily due to the insufficient time before the hearing to engage a structural engineer to respond to the Structural Report sought to be relied upon by the applicant; for the amended plans and their implications for town planning, flooding, and building matters to be assessed; and to allow time for the planning experts to confer and update their evidence as a result of the amended plans. 4. Mr Loether also deposed as to the various enquiries he had made in relation to the availability of structural engineers in order to marshal evidence in respect of the Structural Report and concluded that, as a result of those enquiries, a "minimum of 3 weeks" would be required for Council to marshal appropriate evidence in response to the Structural Report. Submissions 1. Without disrespect to the careful submissions made, I summarise the primary submissions provided by each party. 2. On behalf of the applicant, Mr White submits that the amended plans and documents fall within two categories and comprise, first, essentially "formal" amendments to the plans the subject of the development application appeal; and second, changes to works as executed due to Mr McDonald's (the applicant's town planner) recommendations, as had been raised by him in the joint report of the planning experts. 3. Mr White took the Court to the plans as set out in Annexure "A" to Mr Hanna's affidavit, and dealt with each of the "formal" amendments, being changes to the existing height of the parapet, the lift overrun and rear yard RL changes (which he submits correct errors in the plans). Mr White notes that in relation to the inclusion of the lift overrun, this was well-known to the parties and was the subject of a cl 4.6 request due to a height exceedance and that the town planners had agreed that this exceedance is de minimis. In relation to the RL change in the rear yard, the effect of the change is to reduce the RL to the existing ground level (resulting from the joint expert flooding report). 4. In relation to other changes to the plans, Mr White submits that these relate to the area of the terrace and the presence of the southern wall, and notes that the built area of the terrace is reduced and replaced with landscaping and additional garden areas and that the southern wall is now sought to be removed. Mr White further submits that Mr McDonald, as indicated in the joint report of the planning experts, opines that the use of a landscaped terrace and planters (rather than the southern wall) assists in reducing the bulk of the development and its visual impact, and refers to the shadow diagrams as evidence of the reduced impact as a result of the proposed amendments. Mr White also notes in relation to the demolition regarding the basement, that it is now proposed that the western wall and southern wall that were proposed to be removed in the original demolition plans are now proposed to be reinstated, as this was clearly a mistake in the earlier plans. 5. In relation to the Structural Report sought to be relied upon by the applicant, Mr White notes that Mr McDonald's planning suggestions (in his evidence) are subject to "sign off" from a structural engineer and the Structural Report confirms that the proposed suggestions (including demolition) can take place. Mr White submits that the Structural Report is also responsive to and addresses contention 6(f) in Council's statement of facts and contentions filed 14 April 2021 ('SOFAC'). 6. Mr White accepts that there is a short period of time for Council to review the Structural Report and as such that there was some delay in the provision of the structural engineering evidence. However, he submits that Mr Daintry, Council's town planner, has already had the opportunity to respond to Mr McDonald's suggestions in the joint report of the planning experts, and did not do so, and as such the changes (now sought to be incorporated in the plans for the development application) have been in evidence since August 2021. Mr White reminds the Court that the Class 1 application appealing the refusal of the development application is not designed to "punish" the applicant, but rather to grant an opportunity to consider whether an appropriate design solution can be obtained and regularise the works that have been undertaken. The changes embodied in the amended plans and documents seek to improve the town planning position and reduce the impacts of the development. In relation to the position now adopted by Council, Mr White suggests that there is little evidence in relation to the difficulty caused to Council as a result of the applicant relying on the amended plans and documents, and it is not clear why Council cannot deal with the evidence arising during the course of the hearing. 7. On behalf of Council, Mr Farland submits as a threshold point, that the essential question before the Court in the present motion is precisely that which was asked and answered in the previous motion before the Acting Assistant Registrar as recently as last Friday and that this circumstance should be determinative of the motion. He submits that where effectively the same amended plans and documents are put before the Court (and the same evidence) as in the previous motion, the present motion is an abuse of process. 8. Mr Farland further submits that the changes sought by the amended plans could not be considered to be minor changes and the Structural Report effectively raises new issues, particularly in relation to the structural integrity of the building on the Land. He submits that the changes involving the retention of the walls in the basement constitute "fundamental" changes, that would require further calculations in relation to GFA and similar investigations, and that as a result of the changes, the town planners would need to reconvene to reconsider their evidence. 9. In addition, Mr Farland submits that the Structural Report is not responsive to concerns otherwise expressed by Council about the development on the Land, and points to both the opinion received by the applicant from Istruct Consulting Engineers regarding the demolition of reinforcement items in December 2020, and the correspondence comprising the instructions to the applicant's current structural engineering firm in August 2021, suggesting these documents indicate that the applicant earlier knew that there was a concern about the demolition of items and that the structural engineers who prepared the Structural Report were asked as to what could effectively be removed. Mr Farland notes that the letter of instruction for the Structural Report pre-dated the filing of the joint report of the planning experts. 10. In the circumstances, and referring to Mr Loether's evidence, Mr Farland submits that Council requires time to undertake a review of the Structural Report and to respond, and that if the Court granted the relief sought by the applicant, an adjournment of the hearing for three weeks to allow for this to happen is appropriate. Mr Farland identifies the further work to be undertaken as involving reviewing references to modelling programs, and testing the modelling now sought to be relied upon by the applicant. 11. Further, even to the extent that it was the fact that the Structural Report responds to matters raised by Council in the SOFAC, this was filed in April 2021, and there is no proper explanation for any delay by the applicant in bringing its structural engineering evidence. 12. Finally, in relation to the suggested "formal" amendments to the plans, some of the changes are not objected to by Council if they are shown to be proper "errors", but Council does not accept that the removal of the southern and western walls from the basement were some form of a mistake. In any event, the difficulty the applicant now finds herself in is not of Council's making, and the "suggestions" made by Mr McDonald in the joint report of the planning experts are simply "suggestions". Consideration 1. Having closely considered the evidence and the detailed submissions of the parties, I am of the view that the interests of justice as well as the interests of the parties are properly balanced by effectively allowing the applicant to rely on the amended plans and documents in one of the Class 1 proceedings, and vacating the first two days of the hearing, that is, 26 and 27 October 2021 and making orders that the hearing proceed for two days on 8 and 10 November 2021 (dates which are available to the parties and to the Commissioner allocated to hear the proceedings) for all the Class 1 proceedings. 2. First, I accept that the conduct of the applicant in relation to the filing of the motions (including the previous motion before the Acting Assistant Registrar) so close to the date of the hearing is not to be encouraged or rewarded. Further, I consider that there is substance in Council's submission that there has been no application (by notice of motion) by the applicant seeking orders pursuant to r 49.19 of the UCPR, that the Court reviews and amends the decision of the Acting Assistant Registrar of 22 October 2021 to refuse the previous motion, which would have triggered the well-known principles in relation to the exercise of a court's power to review a registrar's decision that were stated (but not here repeated) in Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260 at [12]-[13]. 3. Turning then to the threshold issue in circumstances where I am hearing discrete new notices of motion, I have considered Council's submission that the present motion should be refused on the basis that it constitutes a repetition of an interlocutory application that has already been made and determined, and as such is an abuse of process, citing National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315; [2002] NSWCA 273 ('Pierson') at [18]. While there is some initial attraction to this submission, particularly given the similarity in the evidence before the Court in the present motion and the previous motion (and particularly the affidavit of Mr Hanna affirmed 22 October 2021, relied upon by the applicant in the present motion, and the affidavit of Mr Hanna affirmed 19 October 2021 read before the Acting Assistant Registrar), I do not consider this submission to be determinative of the present motion. 4. Accepting there is a general principle that parties should not be permitted to bring repeated interlocutory applications covering the same material and that this principle is important for a number of practical reasons, the overriding principle governing the approach of the Court to interlocutory applications remains that the Court should do whatever the interests of justice require in the circumstances of the case: Pierson at [19]; Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80 at [72]-[73]. In these circumstances, taking into account the nature of the proceedings, the orders sought, the stage of the proceedings in which the present motion was brought, and the prejudice to the parties, I do not consider the motion to constitute an abuse of process. 5. In forming my view in relation to the amended plans, I have considered each of the discrete amendments (referred to in par [19] above) and have cross-referenced those amendments to the evidence before the Court. I accept that the changes in the amended plans could not be described as minor as they propose the retention of significant structural elements of the building, which on the existing material before the Court, appears to have been previously proposed for demolition. 6. I find that there is some substance in the applicant's submissions that most of the amendments embodied in the amended plans are, at least to some extent, responsive to Mr McDonald's evidence in the joint report of the planning experts dated 31 August 2021 (but not filed until 19 October 2021). However, I also take into account and accept the uncontradicted sworn evidence on behalf of Council that it is simply unable to properly deal with the amended plans and their implications for town planning, flooding, and building matters in the short space of time between the filing of the present motion (and the previous motion last week) and the hearing. 7. I am not persuaded by the suggestion that Mr Daintry had the opportunity to respond to Mr McDonald's suggestions in the joint report of the planning experts and he did not do so, because I consider that at that time no amended plans were proffered on behalf of the applicant, and that it would appear that the applicant was seriously considering (and conducting appeals) in relation to Council's refusal of the development application on the basis of the plans in the development application. 8. As there was a third non-consecutive day allocated for the hearing of the three Class 1 proceedings on 8 November 2021, and as the Commissioner hearing the matter (which was to initially proceed on 26 and 27 October 2021) remains available on that third day as well as a further day (10 November 2021), I find that delaying the hearing of the Class 1 proceedings until 8 November 2021 would, on the evidence before the Court, allow Council time to properly consider the amended plans. 9. I am less convinced that the Structural Report is responsive to Mr McDonald's evidence in the joint report of the planning experts because, in accordance with the submission of Council, I consider that the nature and extent of the applicant's solicitors' instructions to the engineer drafting the Structural Report were not primarily directed to addressing Mr McDonald's evidence in the joint report of the planning experts dated 31 August 2021, or discreetly and determinatively responsive to a matter of concern raised in the SOFAC, although a reference to the SOFAC was made in the Structural Report. However, I accept that in circumstances where the amended plans were responsive to Mr McDonald's suggestions in the joint report of the planning experts, and Mr McDonald's suggestions were subject to structural engineering evidence, it is appropriate that structural engineering evidence relevant to those suggestions is put before the Court. 10. As is clear from the above, I accept that Council was properly entitled to oppose the relief sought in the present motion (and the previous motion heard by the Acting Assistant Registrar) and I accept that both the Structural Report and the amended plans raise what appears to be a new issue in relation to the need to maintain structural integrity of the building, and that Council would be prejudiced if required to deal with the amended plans and documents without an appropriate opportunity to obtain advice and instructions. In those circumstances, I consider Council is entitled to engage an expert structural engineer to consider the Structural Report and provide advice to Council, and that Council should be able to give further consideration to the amended plans and documents in a timely manner. 11. Of course, it is clear that I express no view whatsoever in relation to the merits of the appeal relating to Council's refusal of the development application, or the importance (or otherwise) of the amended plans and documents. 12. I am aware that my allowance of the amendments to the plans (and the further evidence in the form of the Structural Report) at this very late date, necessitates an adjournment. As noted above, apart from providing some context, I am also conscious that the Class 4 proceedings have been stood over pending the outcome of the Class 1 proceedings. However, it is necessary to properly deal with the amended plans and documents. 13. I am conscious that my allowance of the adjournment to the hearing of the Class 1 proceedings should not be seen to condone conduct of the applicant which I regard as, at the very least, inappropriate both in relation to the lateness of the amendments sought in the amended plans and documents, and the conduct of the separate previous and present motions, however, with some reluctance, I consider it is appropriate to effectively make the orders sought with the consequence of the necessary adjournment albeit accepting that the hearing will go ahead roughly in accordance with the previous timetable. 14. In those circumstances (although I have been asked to reserve on the issue of costs), it is my strong preliminary view that Council is entitled to both its costs of the present motion and the costs thrown away as a result of the orders. In the circumstances, and in order to limit the further costs incurred in these proceedings, I will order the parties to confer in an attempt to reach agreement in relation to costs. If agreement cannot be reached, each party is to file and serve written submissions (limited to five pages) on or before 28 November 2021, with the intention that the Court will decide all issues of costs on the papers. If necessary, the proceedings will be listed for further mention before the Court at 9.15am in the week commencing 29 November 2021. Conclusion 1. In circumstances where Council opposes the amendment of the development application to reflect the amended plans and documents, the Court gives the agreement of the consent authority under cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW) to the amendment, using its power under s 39(2) of the Land and Environment Court Act 1979 (NSW). Orders 1. In addition to the orders made at the completion of the hearing yesterday, 25 October 2021, which I have recorded below, I make further orders today, 26 October 2021 at the conclusion of these reasons, which I have also recorded below. Orders made on 25 October 2021 1. The Court orders: In proceedings 2021/00069569: 1. The listings of the substantive proceedings for Onsite View at 9.30am on 26 October 2021 and for Hearing on 26 October 2021 and 27 October 2021 are vacated. 2. The substantive proceedings are listed for Onsite View at 9.30am on 8 November 2021 and for Hearing on 8 November 2021 and 10 November 2021. 3. The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 (NSW) the function of Strathfield Municipal Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (NSW), agrees to the applicant amending the development application DA 2020.239 filed with the Court on 11 March 2021 by including and substituting (as the circumstances require) the amended plans and documents listed in prayer 1 of the Notice of Motion filed 22 October 2021. 4. The applicant is granted liberty to apply if the respondent, Strathfield Municipal Council, as the relevant consent authority, does not lodge the amendment of the development application on the NSW planning portal within 7 days of the date of this order and notify the applicant after it has been lodged. 5. The Notice of Motion filed 22 October 2021 is stood over to 4.15pm on 26 October 2021 (by telephone). 6. Costs are reserved. In proceedings 2020/00291053: 1. The listings of the substantive proceedings for Onsite View at 9.30am on 26 October 2021 and for Hearing on 26 October 2021 and 27 October 2021 are vacated. 2. The substantive proceedings are listed for Onsite View at 9.30am on 8 November 2021 and for Hearing on 8 November 2021 and 10 November 2021. 3. The Notice of Motion filed 22 October 2021 is stood over to 4.15pm on 26 October 2021 (by telephone). 4. Costs are reserved. In proceedings 2021/00069575: 1. The listings of the substantive proceedings for Onsite View at 9.30am on 26 October 2021 and for Hearing on 26 October 2021 and 27 October 2021 are vacated. 2. The substantive proceedings are listed for Onsite View at 9.30am on 8 November 2021 and for Hearing on 8 November 2021 and 10 November 2021. 3. The Notice of Motion filed 22 October 2021 is stood over to 4.15pm on 26 October 2021 (by telephone). 4. Costs are reserved. Orders made on 26 October 2021 1. The Court orders: In proceedings 2021/00069569: 1. Costs are reserved. 2. The parties are directed to confer on or before 14 November 2021 and attempt to agree in relation to costs of the amendment and costs of the notice of motion the subject of this judgment. 3. Failing agreement, each party is to file and serve written submissions (limited to five pages) on or before 28 November 2021 with the intention that the Court will decide all issues of costs on the papers. 4. Liberty to restore (for mention only) at 9.15am in the week commencing 29 November 2021. In proceedings 2020/00291053: 1. The Notice of Motion filed 22 October 2021 is withdrawn. In proceedings 2021/00069575: 1. The Notice of Motion filed 22 October 2021 is withdrawn. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2021