Land and Environment Court of New South Wales CITATION : Waterland Blue Mountain Natural Water Pty Ltd v Blue Mountains City Council [2006] NSWLEC 537 APPLICANT PARTIES : Waterland Blue Mountain Natural Water Pty Ltd RESPONDENT Blue Mountains City Council FILE NUMBER(S) : 11159 of 2005 CORAM: Pain J KEY ISSUES: Development Application :- whether amendment allowable because different development if amendment granted LEGISLATION CITED: Land and Environment Court Act 1979 s 39(2) Environmental Planning and Assessment Regulation 2000 cl 55 Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 ; CASES CITED: Ervin Mahrer and Partners v Strathfield Council (No 2) (2001) 115 LGERA 259 ; Liauw v Gosford City Council [2004] NSWLEC 72; Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292 DATES OF HEARING: 25/08/2006 DATE OF JUDGMENT: 08/28/2006 APPLICANT Mr M Baird (barrister) LEGAL REPRESENTATIVES: RESPONDENT Mr T Cork (solicitor) SOLICITORS McPhee Kelshaw JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 28 August 2006 11159 of 2005 Waterland Blue Mountain Natural Water Pty Limited v Blue Mountains City Council JUDGMENT 1 Her Honour: This is a Notice of Motion, dated 11 August 2006, to amend a development application the subject of a s 97 appeal as follows: That the development application, the subject of the appeal 11159 of 2005, be amended to seek development for the following: Development approval is sought for the extraction of water, on the subject site, in accordance with DNR licence number 10BL 159573 for a maximum of 0.7 megalitres per year and 2000 litres per day for a period of 4 years to expire on 27 March 2010. No bottling of water is to be undertaken on site. 2 The development application the subject of this appeal was for "Permanent consent DA X99/1013 and 5,000 lt/day" for premises at 15 McLaughlin Avenue, Wentworth Falls. 3 The DA X99/1013 referred to is that granted by this Court on 7 February 2000 in matter no 1077/99. Consent was given for water bottling by the owner/occupier of the premises for five years. That consent, which was for a "home industry" under the Blue Mountains LEP 4 which adopted the Model Provisions, expired in November 2005. 4 The Statement of Environmental Effects ("SEE") filed with the DA the subject of these proceedings states that the proposed use is for a home industry (bottling water) under the Residential 2(A)(i) zone in LEP 4. Relevant sections 5 Section 39(2) of the Land and Environment Court Act 1979 ("the Court Act") deals with the powers of the Court on appeals and 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. 6 Clause 55 of the Environmental Planning and Assessment Regulation 2000 ("the EP&A Regulation") concerns the procedure for amending a development application and provides: (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: (a) development for which concurrence is required, as referred to in section 79B of the Act, or (b) integrated development, the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body. Case law 7 In Ervin Mahrer and Partners v Strathfield Council (No 2) (2001) 115 LGERA 259 Bignold J applied a broad interpretation to the power of the Court to amend under cl 55 in the context of amended plans being sought to be relied on. 8 In Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 an application to rely on amended plans was made. Talbot J stated at [35]: If it is necessary to place some boundary or outer limit on the broad view taken by Bignold J, I would tentatively raise two practical criteria that may provide some guidance, although each case will need to be dealt with on its merits as no doubt Bignold J appreciated when he took such an unconstrained view in Ervin Mahrer. The two criteria that could be helpful in considering whether a development application may be amended or varied are:- (1) Whether the development as amended can be regarded as the same development as the one originally proposed in the context of the characterisation of the overall concept and the surrounding circumstance of the development application. (2) Whether there are essential elements that are so altered in the context of a consideration under the EPA Act that they place the development in a different category for the purpose of assessment. Applicants' submissions 9 The development application is for the extraction of water and the amendment reduces the amount of water sought to be extracted from 5,000 litres per day to 2,000 litres per day. It is also stated that bottling of water will not take place on the site. The criteria identified by Talbot J in Ebsworth are met as the development the subject of the DA is the same as that originally proposed and the changes do not place the development in a different category for assessment purposes. Council's submissions 10 The two tests in [35] of Ebsworth are not met because the nature of the development application has changed from a home industry (bottling water) to a "rural industry", relying on Liauw v Gosford City Council [2004] NSWLEC 72. Accordingly the Court has no power under cl 55 of the EP&A Regulation to amend the development application as sought by the Notice of Motion. Findings 11 The only description for the development now sought is that contained in the Notice of Motion dated 11 August 2006 before me and the letter from Mr Ross Creighton of Australian Town Planning Consultants Pty Ltd dated 20 April 2006 to the Council's solicitors, following a Court order on 19 April 2006 that the Applicant provide a detailed description of the purpose for which development consent was sought. That states: The writer is the planner engaged by the applicant, for the development application and a more precise description of the proposal is: Development consent is sought for the permanent extractions of a minimum of 2000L of water per day to a maximum of 5000L per day. The water will be piped to an existing turning bay, at the top of the driveway, where it will fill a tanker to be taken away for bottling. There will be no bottling on site. 12 I note that there has been a further change to the description of the development sought in the Notice of Motion to that in the letter of 20 April 2006 because the amount of water now sought to be extracted is 2,000 litres per day, not 5,000 litres per day. 13 Curiously the letter dated 20 April 2006 was not attached to the affidavit of Mr Creighton sworn 20 July 2006 and read in support of the Notice of Motion which set out, inter alia, a history of the matter before this Court. That affidavit states at par 15 that the development the subject of the appeal was described in the original DA. Paragraph 18 refers to a report on traffic impacts which is not attached to the affidavit and states that the report identified that the development was for the pumping of water to a holding tank of 7,000 litres which could then be pumped to a tanker truck parked on the McLaughlin Avenue frontage which would go elsewhere for bottling and distribution. The affidavit then states "There is no change sought to the description of this activity the only change is to limit the extraction to a maximum of 2,000 litres per day." This affidavit failed to point out that the changes proposed differ from the activity approved in proceedings number 1077 of 1999. By seeking a change in the development application so that bottling does not take place on site, a requirement if the activity is a home industry, there is an important change in the nature of the operation proposed. Characterising the activity as the extraction of water does not negate the significance of that change in terms of LEP 4. 14 I agree with the Council's submission and as found in Liauw that the activity is a "rural industry". "Rural industry" is defined in the Model Provisions adopted by cl 7 of LEP 4 to mean: "handling, treating, processing or packing of primary products and includes the servicing in a workshop of plant or equipment used for rural purposes in the locality". 15 It was conceded in reply by counsel for the Applicant that the development now sought was appropriately characterised as a rural industry under the LEP. It was also agreed that a new SEE and amended plans would need to be filed if the application to amend is granted. The parties agree that rural industry is permissible with consent under the LEP 4 which applies to this development application under the savings and transitional provisions in the Blue Mountains LEP 2005. Under the 2005 LEP the extraction of water is prohibited. 16 The parties agree that the passage of time before the making of this application is not fatal, these proceedings having been commenced on 4 October 2005 and the first hearing dates on 1 and 2 August 2005 having been vacated. 17 Ebsworth and Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292 state that cl 55 is a beneficial and facultative provision. I have set out [35] of Radray above. In Radray Jagot J considered the test was whether the change proposed is an amendment or variation of the application which will result in a changed development, recognising that the Court has no jurisdiction to entertain an original application. 18 The Applicant's counsel has argued that the original development application and the amendment sought are concerned with water extraction. The amendment is beneficial in that it seeks a lesser amount than was originally sought and is for a fixed period rather than the indefinite period previously sought. The amendment sought also states that bottling will not take place on site. As the Council pointed out in submissions that takes this application outside the home industry category of development under LEP 4 and means that the application is now for a rural industry, a matter not disputed by the Applicant. This suggests the category of development sought is changed from the original application. On the basis of both Ebsworth and Radray I do not therefore consider that cl 55 of the Regulation applies and I decline to order the amendment sought. Order 19 The Notice of Motion is dismissed. 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.