Reported Decision : (1999) 106 LGERA 397 Land and Environment Court of New South Wales CITATION: Ross Karp & Associates Pty Limited v Randwick City Council [1999] NSWLEC 270 PARTIES APPLICANT Ross Karp & Associates Pty Limited RESPONDENT Randwick City Council NUMBER: 10581 of 1998 CORAM: Cowdroy J KEY ISSUES: Development :- delay of applicant in prosecution of appeal - applicant seeking to rely upon amended plans - motion to strike out appeal upon grounds of undue delay and that the development proposed comprises a different development to that referred to in the development application - point of law - whether Court has jurisdiction to hear appeal based upon amended plans Land and Environment Court Rules 1996 Pt 10 r 1 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97 The Land and Environment Court Act 1979 s 17 Environmental Planning and Assessment Regulations 1994 reg 48A DATES OF HEARING: 12/06/1999 DATE OF JUDGMENT DELIVERY: 12/14/1999 APPLICANT Mr W Davison SC SOLICITORS Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr I Hemmings (Barrister) SOLICITORS Bowen & Gerathy Solicitors JUDGMENT: IN THE LAND AND MATTER No. 10581 of 1998 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 14/12/99 Ross Karp & Associates Pty Limited Applicant v Randwick City Council Respondent JUDGMENT Background 1. These proceedings have come before the Court upon a notice of motion filed by Randwick City Council ("the council") dated 22 September 1999. The respondent seeks an order that the appeal be dismissed and an order for costs. The basis for the motion is the inordinate delay in the prosecution of the appeal resulting from numerous changes of plans for the proposed development. 2. The applicant initially sought development approval for the development of residential flats at a property known as 9 Berwick St Coogee. Such application had been lodged with the respondent on 14 May 1998 and ultimately proceedings were commenced on 1 September 1998 in this Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") following a deemed refusal of consent. At that time the plans for the development had progressed to a stage known as Revision C. 3. The matter came before the Registrar of this Court on 2 October 1998 and was adjourned in view of the fact that further plans were foreshadowed. At the adjourned hearing on 15 October 1998 no plans as foreshadowed had been received by council. They were ultimately supplied on 4 November 1998 and known as Revision D. 4. Further delays followed because no fees were provided for the re-advertising of the proposal as required by council. They were ultimately paid and on 8 December 1998 an advertisement for the amended proposal was made by council. 5. On 22 January 1999 the Registrar allocated a date for the hearing namely the 26 and 27 April 1999 in respect of the Revision D plans. 6. On 3 February 1999 another change in the plans was foreshadowed to council and on 24 February 1999 Revision E of the plans was provided to the council. 7. On 16 April 1999 the date fixed for hearing the appeal was vacated by Talbot J. Costs were reserved. The basis of the vacation of the hearing dates was a proposed mediation which took place on 24 May 1999. The mediation was unsuccessful and on 13 July 1999 a new architect was engaged by the applicant. As a result of further instruction, the new architect prepared the final plans known as Revision F. 8. The applicant seeks to proceed with the appeal in respect of Revision F but the council asserts that it is in reality a new development. An affidavit has been prepared on behalf of council which details the numerous changes to the plan which was considered by council and was the subject of the deemed refusal. The applicant has provided a detailed explanation for the delay which satisfies the Court that the proceedings should not be struck out on this ground. 9. The issue remaining apart from the question of costs is the question relating to the nature of the development. The Court has before it two competing opinions concerning the nature of the development. In the Court's opinion this would be better resolved by referring the matter to a Commissioner for determination of a preliminary question, namely whether the development now proposed in Revision F is substantially the same as that considered by council. Point of law 10. The council raises a point of law for initial determination. It submits that this Court does not have jurisdiction to determine the appeal other than in respect of the development application which was before council. It says that the Court cannot hear an appeal incorporating amended plans which were never before council. The argument is predicated upon the basis that the Court is not a consent authority as was found by the Court in Rosecorp Pty Limited v Leichhardt Municipal Council [1999] NSWLEC 95. The council relies upon reg 48A of the Environmental Planning and Assessment Regulation 1994 ("the Regulations") which provide:- 48A (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 development for which the concurrence of a consent authority is required or integrated development, the consent authority must forward a copy of the amended or varied application to the concurrence authority or approval body. 11. The council submits that the jurisdiction of the Court in class one proceedings is described in s 17 of the Land and Environment Court Act 1979 ("the Court Act") which includes the hearing of appeals under s 97 of the EP&A Act. Section 97(1) of that Act provides a right of appeal to the Land and Environment Court for an applicant who is dissatisfied with a determination of the consent authority. It is submitted that the Court therefore is limited by the provisions of s 97 of the EP&A Act to hear appeals. 12. Pt 10 r 1 of the Land and Environment Court Rules 1996 ("the Rules") provides:- (1) The Court may, at any stage of any proceedings, on the application of any party or without any such application, order, on terms, that any document filed in the proceedings be amended in such manner as the Court thinks fit. The council submits that the rule does not give jurisdiction to the Court to alter a development application. The council points to the provisions of s 96(2)(a) of the EP&A Act which provides power to amend an application but submits that this power does not extend to the Court Act. The Court's jurisdiction 13. The submissions of the respondent overlook the power vested in the Court pursuant to s 39(2) of the Court Act which provides:- 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 all 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. 14. By virtue thereof the Court has ' all 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' . The extent of the jurisdiction of the Court has been explained by the decision of the New South Wales Court of Appeal in McDougall v Warringah Shire Council (1993) 80 LGERA 151. At 155 Kirby P adopted the observations of Reynolds JA in Kogarah Municipal Council v Kent (1981) 46 LGERA 334, where His Honour said at 336:- ... the language of s 39(2) ... is wide and clear and to me it means ... that the court could do whatever the council could do in order to dispose of the appeal. Numerous authorities have followed the principle that the Court has the same functions and discretions of the council when considering an appeal (see Claude Neon Ltd v Manly Municipal Council (1981) 50 LGRA 281 at 284; Canterbury Municipal Council v Phillip Morris Ltd (1995) 58 LGERA 178 at 179, 180). In McDougall at 157, Kirby P succinctly stated the effect of s 39(2):- My impression of s 39(2) by its language and apparent purpose in the scheme of the act is that it was intended that the Land and Environment Court be placed fully in the shoes of a council at the time an application is lodged. This impression derives, in part, from the use of the past tense in the word "had", and the fact that s 39(3) of the Land and Environment Court Act directs that an appeal to the Land and Environment Court shall be by way of "rehearing". The result of this interpretation is that all the functions and discretions the council could have exercised when considering the application are open to the Land and Environment Court on appeal and not only those strictly necessary to the approval. At 159 Kirby P summarised his conclusion of the effect of s 39(2) as follows:- However, I respectfully prefer the reading of s 39(2) of the Land and Environment Court Act which will allow the Land and Environment Court, as parliament has provided, to exercise the functions which the council may have exercised when hearing and considering the original application. His Honour reached this conclusion despite expressing some reservation of the width of the interpretation of s 39(2) as considered in Claude Neon and Kent . 15. Regulation 48A is not relevant to the issue of the Court's jurisdiction. It entitles a development application to be amended or varied before determination. The same power by virtue of s 39(2) is vested in the Court since ' whatever the council could do' the Court can do (see Reynolds JA in Kent at 337). 16. The decision of this Court in Rosecorp does not assist the council. The determination that the Court is not a consent authority by definition for the purpose of the EP&A Act is not relevant to the power vested in the Court by s 39(2) of the Court Act. Such section invests the Court with all of the consent authority's power, including that referred to in reg 48A of the Regulations. The submission of the council would only have force if council itself did not have the power to consider a varied plan or an amended plan in respect of a development application before it. Orders 17. The Court orders:- 1. The Notice of Motion be stood over pending the determination of the question referred to in Order 2 hereof. 2. The appeal be heard before a Commissioner and that the Commissioner determine whether the amended plans known as Revision F represent such a substantial and significant change from the plan considered by council that they are properly regarded as a fresh set of plans for a different development. 3. The costs of the motion are reserved pending the determination of the appeal. 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.