> Land and Environment Court of New South Wales CITATION : McGowan v Leichhardt Municipal Council [2003] NSWLEC 390 PARTIES : Robert McGowan (Appl) Leichhardt Municipal Council (Resp) FILE NUMBER(S) : 11021 of 2003 CORAM: McClellan CJ Development Application :- Modification application KEY ISSUES: Issue as to whether substantially the same development Whether matter appropriate for determination as separate question LEGISLATION CITED: Environmental Planning and Assessment Act CASES CITED: DATES OF HEARING: 7 November 2003 EX TEMPORE JUDGMENT DATE : 11/07/2003 P Tomasetti (Barrister - Appl) R McGowan (Appl in person) LEGAL REPRESENTATIVES: R McCulloch (Resp) Pike Pike & Fenwick (Sol - Resp) JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11021/03 McCLELLAN J FRIDAY 7 NOVEMBER 2003 McGOWAN Applicant v LEICHHARDT MUNICIPAL COUNCIL Respondent Judgment Introduction 1 HIS HONOUR: In this matter there are class 1 proceedings which relate to the refusal by the Council of an application pursuant to s 96 of the Environmental Planning and Assessment Act. That application seeks the modification of a development consent granted by the Council for the construction of a second storey on a dwelling within the municipality. As I understand the position, the s 96 application seeks to reconfigure the external and internal arrangements for the proposed upper storey. 2 The Council has put in issue whether or not the proposed modification is relevantly substantially the same development so that it can be dealt with pursuant to s 96. The matter being in issue, the Council took the step at the time - as I understand it, with the consent of the applicant – of referring the matter to a judge to be determined as a separate question. The Council took this step in the belief that the question may, if determined adversely to the applicant, bring the proceedings to an end, thereby avoiding a merit determination. 3 When the matter was called this morning, counsel for the applicant took a different position. He submitted that the matter was not one appropriate for separate determination and that the whole of the matter should proceed before a commissioner at an early date. 4 It was submitted that, even if the s 96 question was determined adversely to the applicant, nevertheless, the merits of the proposal would be able to be reviewed to the benefit of both parties. The applicant recognises that there is a risk that, if the s 96 question is determined adversely to his interests, some of the costs incurred in considering other matters may be lost. 5 Notwithstanding these matters, the applicant seeks that the Court not proceed to determine a separate question but refer the matter to the Registrar for a hearing date. 6 In my opinion, this is not a matter appropriate for a separate determination. Whether or not a development is substantially the same development is a question of fact which it is appropriate for a commissioner to determine. Commissioners are appointed because of their qualifications and experience in planning and environmental matters. The question which arises in relation to s 96 is one which in my opinion is peculiarly suitable for determination by a commissioner. 7 Furthermore, it is plain that, if the Council's submission is correct, no practical benefit can be achieved. The applicant seeks to reconfigure an approved development and could without question pursue that application by the lodgement of a new development application rather than seeking merely to modify an existing approval. The lodgement of that application, if refused by the Council, would be the foundation for an appeal to this Court. In that appeal, all of the merit issues which will arise in relation to the present matter will again fall for consideration. 8 Accordingly the consequence of the raising and determination of a separate question would be to add an extra cost to these proceedings without any practical benefit. 9 That is not to say that at the end of the day the section must not be complied with. Of course that must be so. However, if the s 96 matter can be looked at now together with all of the other merit considerations by a commissioner, I have no doubt that both parties will benefit from that consideration and evaluation by a commissioner. 10 The obligation falls upon all parties in this Court to assist the Court's processes to ensure the efficient and effective disposition of merit appeals. The fundamental object of the Court in considering merit appeals is to make merit determinations so that the best community outcome can be achieved for any site. 11 There will be occasions upon which it is appropriate to isolate and determine separate questions. However, in my opinion it will be only be in a rare case where a question of fact should be isolated and referred to a judge for determination. 12 I do not consider the factual question of whether or not a development is substantially the same, which arises pursuant to s 96, to be a matter which is ordinarily suitable for determination as a separate question by a judge. 13 For those reasons I refuse to determine a separate question and I give the parties leave to approach the Registrar forthwith to obtain a hearing date. 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.