Land and Environment Court of New South Wales CITATION : Groeneveld v Wollongong City Council [2009] NSWLEC 1226 APPLICANT John Groeneveld PARTIES : RESPONDENT Wollongong City Council FILE NUMBER(S) : 11050 of 2008 CORAM: Acting Registrar Gray KEY ISSUES: COSTS :- Amended Plans - s 97B costs order - whether amendments were 'minor amendment' LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97B Local Government Act 1993 CASES CITED: Cachia v Manly Council (No 2) [2009] NSWLEC 1107 Coshott v Woollahra Council [1996] NSWLEC 256 DATES OF HEARING: 11 May 2009 DATE OF JUDGMENT: 18 June 2009 APPLICANT Mr Groeneveld in person LEGAL REPRESENTATIVES: RESPONDENT Mr Cottom, Solicitor Kells the Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES ACTING REGISTRAR GRAY THURSDAY 18 JUNE 2009 08/11050 - John Groeneveld v Wollongong City Council JUDGMENT 1 ACTING REGISTRAR: This is an application made by the respondent in the proceedings for costs pursuant to section 97B of the Environmental Planning and Assessment Act 1979 following leave granted by the Court on 11 May 2009 for the applicant to rely on amended plans. 2 The substantive proceedings are an appeal from a decision by Wollongong City Council ("the Council") to refuse development consent for a five lot sub-division of property in Mount Pleasant and the construction of four buildings together with a roadway. One amendment had previously been made by the applicant, leave having been granted by Registrar Dixon on 12 November 2008. 3 The amended plans the subject of this costs application were initially provided by the applicant to the respondent in answer to a contention made by the Council in its Amended Statement of Facts and Contentions that insufficient information had been provided by the applicant. The applicant initially argued that there had been no amendments to the plans but that the plans simply provided more detail to the plans that were already the subject of the appeal. After much discussion before me on 5 May 2009, the applicant agreed that the more detailed plans included changes to the previous plans relied upon and therefore that leave was required to rely upon them. 4 The applicant subsequently filed and served a Notice of Motion on 5 May seeking leave to rely on amended plans and on 11 May 2009 I subsequently granted leave to the applicant to rely on the amended plans. The consequence of the granting of leave is that the provisions of s97B arise for consideration. That section deals with costs incurred by the Council that are payable if the Court allows the applicant to file an amended development application. The Council seeks its costs pursuant to that section. 5 The only circumstance in which s97B does not apply is when the amendments to the plan, for which leave has been granted, can be described as a "minor amendment". The applicant, Mr Groenveld, argues that the amendments to which this application relates are ones that can be described as such. 6 At the time of the application for leave to rely on the amended plans the applicant, who is a litigant in person, was unable to assist the Court with the filing of an affidavit that sets out the nature of the amendments to the plans and the other matters required by paragraph 29 of Practice Note Class 1 – Development Appeals. An affidavit filed by him together with the Notice of Motion on 11 May 2009 was not read as it did not comply with the requirements of the Practice Note and simply articulated the title of the amended plans that were sought to be relied upon together with a statement that the amendments therein were minor. 7 Mr Cottom, the solicitor for the Council, was able to assist the Court by making clear the precise amendments made to the plans. His description was generally accepted by the applicant as being accurate. Firstly, there have been amendments made to the works to be undertaken at the roadway where there is an entrance to the property. Secondly, there has been a change to the direction or course of the roadway. Thirdly, the amended plans remove the earlier proposed retaining walls and in their place there is proposed sheet piling. Fourthly, there have been changes to three of the four building envelopes. 8 It is the applicant's submission that these amendments are minor on five grounds. Firstly, the applicant submits that the amended plans do not require re-notification. Secondly, the applicant says that the amended plans do not change the concept and nature of the development. He points out that there is no change in use, in the detail of the driveway, in the number of buildings and no change in the sub-division. Thirdly, the applicant states that the amendments were made as a result of the further information that was required to be provided to the respondent and therefore they ought to be considered minor for that reason also. 9 In support of this third point, the applicant also again asserts that the amendments were simply overlay plans providing more detail than earlier plans, and were not actually plans which amended the development application. Based on my own examination of the amendments to the plans, I cannot accept the truth of this assertion. As indicated above, Mr Cottom's description of the amendments was generally accepted by Mr Groeneveld. I accept that description as being a true reflection of the nature of the amendments to the plans. 10 The fourth ground on which the applicant relies to support his submission that the amendments are minor is that there is no evidence that extra work is required by the Council to assess the amended plans. Finally, Mr Groeneveld says that the amendments make positive changes to the development application that resolve issues raised by the Council and therefore there should be no additional cost incurred by the Council as a result of the amendments. The applicant says that this is particularly so when the joint conferencing had not occurred prior to the filing of the amended plans. 11 Mr Cottom, solicitor for the Council, has drawn my attention to the point that the site is one that is highly constrained by its steep slope and by its ecology. The amendments to the plans result in changes being made to the trees that are required to be retained and removed in the proposed development. The Council submits that this requires further assessment by an ecologist. Further, the changes to the course of the roadway and the entrance to the roadway, together with the removal of the retaining wall and its replacement with sheeting, will require assessment by landscape architect and/or a civil engineer. The deletion of the retaining wall may create an additional contention in the proceedings. It is the Council's position, therefore, that significant time and cost has been incurred as a result of the original application and will be occurred in dealing with the amendments for which I granted leave on 11 May 2009. 12 Much of my decision must turn to the precise meaning of 'minor amendment' in s 97B(1) of the Environmental Planning and Assessment Act. Whilst there is as yet no judicial guidance on this point, this was a question considered by Senior Commissioner Moore in Cachia v Manly Council (No 2) [2009] NSWLEC 1107. 13 In that decision, the Senior Commissioner considered the Minister's second reading speech on 15 May 2008 and the explanatory note to the amending bill. He found neither of those things to be of assistance to him in determining what might constitute a 'minor amendment'. He then goes on to consider the interpretation by Bannon J in Coshott v Woollahra Council [1996] NSWLEC 256 of the words 'minor amendment' as they appeared in the Local Government Act 1993. The Senior Commissioner arrives at the following conclusion (at para 25-26): "25. It is clear that the matter that I need to determine is one of fact and degree. The words that are used by Bannon J in that Coshott, on two occasions, relates to the (relative or overall) effect of the changes being minor. 26. I am satisfied that it would be appropriate, consistent with what his Honour said in Coshott and consistent with the legislative intention, to have regard not to the number of amendments but, whether in the context of the issues that are pressed by the council, the total effect of the changes are minor or not." 14 I agree with the reasons provided by the Senior Commissioner and adopt the conclusion reached by him. In order to determine whether amendments are a minor amendment, I must have regard to the degree of the changes made and their overall effect. 15 Mr Cottom, for the Council, suggests that the proper circumstances in which an amendment might be considered 'minor' are those where the amendment does not cause the Council to conduct a significant re-assessment of the development application. Further, he suggests that other circumstances might include those where the amendments are made to resolve non-threshold issues. 16 The Council submits that the points raised by the applicant are not sufficient to fall within the meaning of 'minor amendment'. In light of the reasoning set out by the Senior Commissioner, I accept that submission. That the amended plans do not require re-notification is not relevant to the Court's determination as to whether those amended plans constitute a 'minor amendment'. Each consent authority has different provisions in relation to the requirements for re-notification where changes have been made to development applications. Therefore it cannot be said that because a particular consent authority is not required to re-notify, the amendments are minor within the meaning of s97B. 17 I also reject the applicant's submission that an amendment must be minor where there is no change in the concept. It is clear that I must look at the overall effect of the amendments, and not simply be limited to the overall development concept. Further, that the amendment is responsive to issues raised by the Council or narrows the issues in contention between the parties cannot automatically result in the amendments being described as minor. 18 The applicant asserts, as indicated above, that there is no evidence relied upon by the Council to establish that additional costs will be incurred by them or additional work will be required as a result of the amendments. Whilst this is true, I am of the view that this is not a relevant consideration for my determination. Section 97B does not place an onus on the Council to establish that the amendments will cause them additional costs or additional work and that therefore an order pursuant to s 97B(2) is required to be made. Rather, s 97B operates to allow the Council its costs where amendments other than a 'minor amendment' have been allowed by the Court. The Court's role in this regard is to examine the amendments and consider their overall effect in order to determine whether, on the balance of probabilities, they constitute a minor amendment pursuant to s97B. Whilst any evidence of costs to be incurred or work to be conducted as a result of the amendments can be taken into account in making that determination, the absence of such evidence is not determinative of a minor amendment. 19 I accept the submission of the Council that circumstances where amendments can be considered minor are those where the amendments do not require any significant re-assessment of the development application by the experts engaged by the parties. Other circumstances might include where the amendments could have otherwise been dealt with by way of conditions of consent, or where the amendments relate to issues that are not the threshold issues in contention in the proceedings. 20 Having regard to the precise nature of the amendments as revealed by an examination of the amended plans and the previous plans relied upon, it is clear that the current amendments do not fall within any of the above circumstances. In considering the particular amendments, I cannot accept that the deletion of proposed retaining walls and the replacement of them with sheet piling is a minor amendment. This amendment requires the Council to assess the amended structure and ensure that no geotechnical or engineering issues arise. 21 Further, the cumulative effect of the amendments to the building envelopes and the course of the roadway is to allow for tree retention and the Council is therefore required to re-assess the ecological impacts of the development. Accordingly, these amendments also cannot be considered a minor amendment. 22 In circumstances where I am not satisfied that the amended plans are a minor amendment to the development application, the provisions of s97B require me to make a costs order in favour of the Council in the same terms as what is set out in s97B(2). Accordingly, I make the following order: 1. That the applicant pay the respondent's costs incurred in respect of the assessment of, and the proceedings relating to, the original development application the subject of the appeal, as agreed or assessed. 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.