Land and Environment Court of New South Wales CITATION : Young v Parrramatta City Council (No 2) [2006] NSWLEC 662 APPLICANT PARTIES : Greg Young RESPONDENT Parramatta City Council FILE NUMBER(S) : 10322 of 2006 CORAM: Pain J KEY ISSUES: Development Application :- Whether development application can be amended to seek consent for deferred commencement - costs Land and Environment Court Act 1979 s 69 LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 10 r 1 Environmental Planning and Assessment Act 1979 s80(3) Environmental Planning and Assessment Regulation 2000 cl 55 CASES CITED: Grant v Kiama Municipal Council [2006] NSWLEC 70 DATES OF HEARING: 23/10/2006 EX TEMPORE JUDGMENT DATE : 10/23/2006 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT Ian Woodward (solicitor) SOLICITORS Storey & Gough Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 23 October 2006 10322 of 2006 Greg Young v Parramatta City Council (No 2) EX TEMPORE JUDGMENT 1 Her Honour: These are Class 1 appeal proceedings in relation to development application 175/2006. I handed down a judgment on a preliminary question of law on 1 September 2006. The question of law was whether the Court had power to approve an application for subdivision of land where the land was the subject of a development consent granted by the Court in 2004 pursuant to State Environmental Planning Policy No 5 – Housing for Older People with a Disability ("SEPP 5"), and the 2004 development consent had not yet been carried out. I held that the Court had no jurisdiction to consider the applicant's development application for subdivision because of cl 18 of SEPP 5. The Council has been represented by its solicitor and the Applicant has represented himself throughout. 2 The Applicant has filed a notice of motion dated 11 September 2006 seeking an order under the provisions of cl 55 of the Environmental Planning and Assessment Regulation 2000 ("the Regulation") and Pt 10 r 1 of the Land and Environment Court Rules 1996 ("the Court Rules"). The Applicant's notice of motion states that: The Applicant under the provisions of Cls 55, Environmental Planning and Assessment Regulation 2000 and Part 10 Rule 1, Land and Environment Court Rules 1996, applies for leave of the Court to amend Development Application No 175/2006 dated 28 February 2006 the subject of these proceedings. The extent of the amendment is to have the development application assessed as a Deferred Commencement consent under the provisions of Cls 80(3), Environmental Planning and Assessment Act 1979. The Applicant also seeks his costs of the motion. 3 The motion is supported by an affidavit sworn 12 September 2006 by the Applicant. The affidavit sets out conversations with the Council's officers from the Applicant's point of view and attaches correspondence between the Council and the Applicant relating to the development application in these proceedings. It is not material to the issue before me today. What the council did or did not say or write to the Applicant can have no bearing on the legal question before me raised by this notice of motion. 4 The Applicant relies on Part 10 r 1 of the Court Rules, which provides a general power of amendment of documents filed in proceedings. Part 10 r 1 of the Court Rules states: (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 . … 5 Clause 55 of the Regulation, enabling amendment of a development application by an applicant for development was also relied on as the basis on which the Court can amend the development application filed in this Class 1 proceeding. Clause 55 of the Regulation states: (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. … 6 I agree with the Council's submissions that there is no provision in the Environmental Planning and Assessment Act 1979 ("the EP&A Act") or Regulation which enables application to be made for development consent for a deferred commencement condition and there is simply no power available to me to amend the development application in the way sought by the Applicant. While the Applicant stated that there was no provision in the EP&A Act which specifically prevented such an application that is not the appropriate way to consider that Act. An applicant for development can only do what is provided for in that Act. The requirements for the lodging of a development application are defined in the Act and Regulation, particularly cl 50. These provisions circumscribe the nature of the development application which can be made. 7 While s 80(3) of the EP&A Act provides for development consent to be granted on the basis of a deferred commencement condition, that relates to the power of the consent authority and also the Court in approving a development application. It does not provide a mechanism whereby applicants for development can lodge a development application for deferred commencement. There is simply no provision for such a development application to be made and the Applicant's notice of motion is misconceived. 8 In any event, cl 55 of the Regulation relates to the power of an applicant to amend its development application prior to determination and cannot be a basis for the Court to amend the development application as the Applicant is seeking. Nor is the general ability of the Court to amend documents filed in the proceedings provided in Part 10 rule 1 of the Court Rules intended to provide the Court with powers of amendment of a development application beyond the terms provided for in the EP&A Act. It follows that I should dismiss the Applicant's notice of motion. 9 In light of my earlier findings that the Court has no jurisdiction to determine the Applicant's development application I consider the Applicant's class 1 appeal should be dismissed. Costs 10 The Council is seeking its costs of the motion I heard today and also its costs on the preliminary question of law, which I determined on 1 September 2006, as it has been successful in both proceedings. 11 Section 69 of the Land and Environment Court Act 1979 provides that costs are awarded in the discretion of the Court. The general costs rule in Class 1 proceedings under Pt 16 r 4 of the Court Rules is that each party pay their own costs unless it is fair and reasonable that costs be awarded. 12 The decision of Grant v Kiama Municipal Council [2006] NSWLEC 70 is apposite. At [15], Preston J identifies a number of circumstances where the Court has considered that it would be fair and reasonable to make an order for costs in Class 1 proceedings. These are (a) where the proceedings cease to have the character of merits review, such as where there is a central issue as to whether there is power to grant the approval sought at all, (b) where the matter the subject of the costs application involves only a preliminary question of law, and (f) where proceedings have been continued in circumstances where the applicant or respondent respectively, properly advised, should have known that it had no chance or very poor prospects of success. The Council argued that as clearly both the preliminary question of law and the notice of motion fell into one or more of these categories that costs should be awarded in its favour. 13 The issue before me in the preliminary question of law dealing with the Court's jurisdiction clearly falls into both category (a) and (b). The Applicant argued that the issue which arose in the preliminary question was novel in that it had not been raised before. Clearly however there were no merit issues raised by the issues before the Court and in my view it is appropriate that I order costs in the Council's favour. 14 In relation to the notice of motion before me today, a preliminary question of law has been raised which also raises no merit issues at all. The Applicant should also pay the Council's costs of the notice of motion. Orders 15 The Court makes the following orders: 1. The Applicant's Notice of Motion dated 11 September 2006 is dismissed. 2. The Applicant's Class 1 appeal is dismissed. 3. The Applicant is to pay the Council's costs on the preliminary point of law determined on 1 September 2006. 4. The Applicant is to pay the Council's costs of the Applicant's Notice of Motion dated 11 September 2006. 5. The exhibits are to be returned. 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.