Land and Environment Court of New South Wales CITATION : S J Connelly Pty Limited v Byron Bay Shire Council No. 3 [2010] NSWLEC 1338 APPLICANT S J Connelly Pty Limited PARTIES : RESPONDENT Byron Bay Shire Council FILE NUMBER(S) : 10710 of 2009 CORAM: Hussey C KEY ISSUES: COSTS :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 CASES CITED: Groeneveld v Wollongong City Council [2009] NSWLEC 149 Cachia v The Hills Shire Council [2010] NSWLEC 136 DATES OF HEARING: 18 & 21 May 2010 DATE OF JUDGMENT: 23 December 2010 APPLICANT Mr P Tomasetti (SC) SOLICITOR McCartney Young Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton (Solicitor) SOLICITOR Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 23 December 2010 Appeal No 10710 of 2009 S J Connelly Pty Ltd v Byron Shire Council (No. 3) JUDGMENT Background. 1 This matter concerns a s97B application regarding costs associated with amended plans that were tendered during an appeal against council's refusal of a staged development application to create some 270 residential lots at "Tallowood Ridge Estate Mullumbimby". My findings on the merits of this appeal were published on 16 July 2010 and orders subsequently made on 14 September 2010. The question of the 97B remained reserved. 2 In the findings I noted that this 'staged development application' matter was somewhat unusual because it involved a review of a considerable amount of environmental assessment material so as to achieve an overall 'concept plan', which then enabled the determination of the various subdivision stages of development. The appeal ran for a period of 10 days and resulted in a considerable number of amendments being made during the appeal process due in part to the need to clarify and upgrade some of the original council environmental assessment material. 3 For the determination of whether these amendments are considered minor, the parties agree that the original development application details are those contained in Exhibit "L". The amendments are subsequently embodied in Exhibit "S". 4 The initial set of plans/details in Exhibit L then comprised the following described list of plans: 1 Concept Proposals Plan prepared by S J Connelly dated 10 February 2010 1232­432 Amend B 2 Riparian Restoration and Planting Plan. 3 Concept Infrastructure Plan prepared by SJ Connelly CPP Pty Ltd dated October 20091232-401 Plan 10.1 4 Vegetation & Threatened Species Plan prepared by SJ Connelly CPP Pty Ltd dated November 2009 Plan 4.1 5 Subdivision plan for Tallowood Ridge, Stage 1 Plan of Subdivision, Lot 2 DP 785041, Lots 170 and 171 DP 720414, prepared by LandPartners dated 28 January 2010 LM070237-SP3 Rev A 6 Tallowood Ridge Stage One Plan of Existing Trees, prepared by LandPartners dated 6 February 2010 LM070237-TR3 Rev B. 7 Shelter Belt Tree Planting Public Road Reserve (Rd No.3) prepared by Landpartners dated 7 February 2010 8 Bulk Earthworks Plan and Cut and Fill Depths, 0.5 m Existing Contours, prepared by LandPartners dated 7 February 2010 LM070237 -RD3 Rev B. 9 Proposed Lot Layout and Roadworks Plan, 0.5 m Design Contours, prepared by LandPartners dated 19 June 2009 LM070237-RD4 Rev A. 10 Stormwater Layout and Catchment Plan, 0.5 m Design Contours, prepared by LandPartners dated 19 June 2009 LM070237-RD5 Rev A. 11 Services Plan, 0.5 Design Contours, prepared by LandPartners dated 19 June 2009 LM070237 -RD7 Rev A. 12 Road 1 Long Section and Typical Section, prepared by LandPartners dated 19 June 2009 LM070237 -RD8 Rev A. 13 Road 2 Long Section and Typical Section, prepared by LandPartners dated 19 June 2009 LM070237-RD11 Rev A. 14 Road 3 Long Section and Typical Section, prepared by LandPartners dated 19 June 2009 LM070237-RD13 Rev A. 15 Stormwater Line 1 Long Section prepared by LandPartners dated 19 June 2009 LM070237-RD15 Rev A. 16 Stormwater Lines 2 & 3 Long Sections and Calculation Sheets prepared by LandPartners dated 19 June 2009 LM070237 -RD16 Rev A. 17 Stormwater Treatment Bio Retention Basin Plan 0.2 m contours, prepared by LandPartners dated 19 June 2009 LM070237-RD17 Rev A. 18 Stormwater Treatment Bio Retention Basin Typical Sections, prepared by LandPartners dated 19 June 2009 LM070237 -RD18 Rev A. 19 Electricity and Telecommunications Layout prepared by Landpartners dated 03.08.09 LM070237-RD49 Rev A. 20 Stage One Landscape Plan Exhibit 2.4 prepared by SJ Connelly CPP Pty Ltd undated Exhibit 2.4 21 Sewer Layout Plan 0.5m design contours prepared by LandPartners dated 19 June 2009 LM070237 -HY2 Rev A. 22 Sewer Line A Long Sections prepared by LandPartners dated 29 May 2009 LM070237 -HY3 Rev A. 23 Sewer Line A, B & C, Long Sections prepared by LandPartners dated 29 May 2009 LM070237 -HY 4 Rev A. 24 Sewer Line 0, E & F, Long Sections prepared by LandPartners dated 19 June 2009 LM070237-HY5 Rev A. 25 Sewer Line G, H & J, Long Sections prepared by LandPartners dated 19 June 2009 LM070237-HY6 Rev A. 26 Water Reticulation Plan 0.5m Design Contours, prepared by LandPartners dated 19 June 2009 LM070237-HY7 Rev A. 5 Due to the nature of this staged development proposal, the revised details of the development application were incorporated into Exhibit S entitled "Tallowood Ridge, Future Stages Concept Proposals – Volume One" and relevantly comprised: - Sections 1 – 17 containing written commentary on specific aspects of the development, including 1 – Introduction, 2 Design Principles … - List of Plans. The exhibit contained 14 plans, including: o Plan 2.1 Land Use Plan o Plan 2.2 DCP No. 11 Mullumbimby Map Extracts o Plan 2.3 Site Analysis Plan o Plan 4.1 Vegetation and Threatened Species Records o Plan 4.2 Council's high conservation value vegetation mapping. o Plan 4.3 Rehabilitation Plan o Plan 5.1 Shelter Belt within 6m wide planting area o Plan 5.2 Integrated Shelter Belt Proposal o Plan 6.1 Stages Plan o Plan 8.1 Proposed Road and Bikeway Systems o Plan 9.1 Schematic Subdivision Layout Plan o Plan 10.1 Concept Infrastructure Plans o Plan 15.1 Open Space o Plan 17.1 Stylised Watercourse Rehabilitation Cross-section . - List of Tables; comprising: o Table 4.1 Threatened Flora o Table 4.2 Threatened Fauna 6 I note that the modified details in Exhibit S were then updated in the final concept plan as contained in Exhibit Z. Decision framework 7 The question for the Court in this matter concerns whether the amendments are classified as minor?. Section 97B provides: 97B Costs payable if amended development application filed (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal. (3) The regulations may provide for circumstances in which subsection (2) does not apply. (4) This section has effect despite the provisions of any other Act or law. 8 Whilst s97B does not define "minor", there have been a number of judgements dealing with this question. The most comprehensive decision is that of Pepper J in Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 where she said: 5 The issue in this motion is whether the proposed amendments as contained in the amended plans are "minor" for the purpose of s 97B of the Environment and Planning Assessment Act 1979 ("the EPAA"). If they are not, then that provision states that irrespective of the utility and appropriateness of the amendments, the applicant must in effect pay the council's costs incurred in respect of the assessment of the original development application. Somewhat unusually in respect of an awards of costs the Court has no discretion but to award costs against the applicant if the Court forms the view that the amendments are other than "minor". 9 In the consideration of that matter, Her Honour then said: 37 I accept the submissions of the council that the words of s 97B are clear on their face insofar as it is the plain intention of Parliament to impose a liability for costs on an applicant who seeks to rely on an amended development application for anything other than minor amendments, irrespective of whether or not the amendments are ultimately beneficial. So much so appears from the second reading speech quoted in Cachia (at [18]). 38 An unintended result of the enactment of s 97B of the EPAA may be to deter applicants from conducting their appeals efficiently by electing not to narrow the issues in dispute on appeal by making appropriate amendments to their development applications (see, for example, Cachia). Be that as it may, the remedying of this vice is a matter for Parliament and not for the Court by recourse to a strained construction of the unambiguous language of s 97B and an unreasonably and unjustifiably wide definition of the term "minor". 10 Of particular relevance to the subject application are the following comments: 41 On appeal (Groeneveld v Wollongong City Council [2009] NSWLEC 149), Preston CJ affirmed the decision of the Acting Registrar in the second Groeneveld and stated further (at [29]-[32]): 29 I accept that an assessment of whether an amendment to a development application is minor or not must be undertaken having regard to the context of the development and its location. Hence, in this case, it is relevant to look at the length of road that is being proposed, the site area, and the trees on the site. However, in this case the critical factor is the impact that the amendments to the development, in particular the re-alignment of the road and the new methods of construction of the road, had for the retention or removal of the trees. It is the significant changes to the trees to be retained and removed that causes these amendments to not be able to be classified as minor. 30 It may be accepted that the amendments did not cause an entirely new issue to be raised. Nevertheless, the amendments did require an existing issue to be re-assessed, in particular, they required the re-assessment of the impact the now proposed development would have on the retention and removal of trees. There were material differences for the reasons I have already explained. 31 The amendments cannot be said to be only matters of detail. Of course, the details of the location of the road, the method of construction and the identity of trees to be removed or retained, have altered by reason of the proposed amendments. However, these changes are of significance for the reasons that I have given. It is not to the point to say that the development still remains, in broad terms, the subdivision of land, the carrying out of associated works including construction of a roadway, and the removal of trees. Of course, that is true but that is not an answer to whether the amendments are minor. The concept of a minor amendment cannot be restricted to one which involves the retention of the same concept. 32 The fact that the amendments do not require re-notification is, in my opinion, an irrelevant consideration in determining whether or not the amendments should be classified for the purposes of s 97B (1) as minor amendments. The requirement for re-notification will vary from council to council depending upon the applicable legislative and policy instruments applying in the local government area. 42 A review of Cachia and the two Groeneveld decisions reveal the following principles that may, at a minimum, assist in determining whether the amendments are "minor" for the purpose of s 97B of the EPAA: (a) first, the question of what is 'minor' is one of fact and degree (Cachia at [25] and the first Groeneveld at [14]); (b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development (Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]); (c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]); (d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]); (e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]); (f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor; (g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and (h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]). The submissions 11 Insofar as there was some argument during the hearing about whether leave was required to amend the application because of the extent of the changes and matters arising during the hearing, the amended details were tendered. Consequently, the initial submissions for council are that the amendments included in Exhibit S are not minor when compared to the original Exhibit L. 12 In considering this matter, I note that both parties have made submissions regarding the authority in Futurespace and accordingly I have referred to the 8 tests, where appropriate, stated in cl 42. Furthermore, I also note that the Macquarie Dictionary defines 'minor' as "lesser, as in size, extent, or importance, or being the lesser of two,…". 13 The first point Mr Seton submits for council is that the 'concept proposals plan' in exhibit L (Attachment A) contained a number of so-called "blob diagrams". These blobs could otherwise be described as 'cloud diagrams' whose purpose was to delineate in a general diagrammatic manner the various land-use precincts, including the following examples: - Stages 2, 3, 5 & 6; low density residential precincts, - Stage 4; mixed density residential precinct, - Stage 2; multi use sports & community precinct - Agricultural land. 14 Following a considerable amount of argument during the proceedings about the utility of the blob diagrams, in the context of the other planning documents, including the LEP and DCP, the revised 'schematic subdivision layout' plan in exhibit S emerged (Attachment B). This provided more definition of the overall extent of the various components of the development. 15 I am satisfied that the changes are significant and introduce more detailing that required assessment. Whilst the changes arose mainly in response to the evidence, this however is not a determinative matter according to test 6. In the subject context, Mr Seton identified the following amendments: - Variations in the extent of schematic subdivision layout with some of the proposed lots extending outside the 'blobs'. - Adjustments to lot layouts to retain identified tree and vegetation constraints. - Exhibit S introduced a new road across the flood-liable area from Clays Road to the new internal road – extension of Tuckeroo Avenue. This change required assessment of flooding impacts. - Staging; the concept proposals plan showed 6 residential stages. However the Stages Plan 6.1 shows 7 stages. This has cumulative implications requiring assessment for the implementation of any approved plan. - On – site sewerage plan; The amended Plan 6.1 designates an area for OSS processing of Stage 1, which is to be removed in stage 2. This differs from the initial application. 16 Against this, Mr Tomasetti submits that: - The extensions outside the blobs are minor because the proposed subdivisions lots are still contained within the overall 'red zone line' shown on the concept proposal plan. Whilst it is different, it hardly warrants the payment by the applicant of council's entire costs of the application. - Clays Road extension; Whilst this was not shown on the concept proposals plan, nevertheless the planning controls and discussions in the appeal indicated a need to provide a flood free access. As this road provision arose out of joint expert conferencing, it is of a minor nature. - Staging Plan; The increase in the additional 7th stage is of a minor nature only. - On –site sewerage arrangements; The change in location in this regard is of a minor nature, which in any case is ultimately subject to licence requirements. Conclusions 17 Having considered the competing submissions, I consider that some amendments were made to this development application, which I consider are significant and that I do not classify as minor. In this regard, I rely on the detailed submissions by Mr Seton. 18 By reference to the tests in Futurespace my findings are: - The aforementioned identified amendments introduced more detailing, which was important in the overall assessment of the development application. Consequently this additional detailing required assessment apart from the original assessment. - The context of the subject 'staged development application' was complex due to the plethora of environmental assessment and preliminary planning information. This necessitated the preparation of a satisfactory 'concept plan', from which the various stages of development could be approved. In this context, I consider the amendments made to the 'blob diagrams' so as to achieve a satisfactory outcome are not of a minor nature because more substantive detailing was presented. - From my observation of the various evidence presented to the Court, I am satisfied that the identified amendments resulted in a significant amount of re-assessment of the original development application. - Whilst I accept that the amendments relate to the initial application and don't raise new issues, nevertheless the nature of this particular 'staged development application' resulted in the submission of the amended details in order adequately address the relevant s97 consideration matters. In light of the re-assessment of these details, I do not classify them as minor. - I note that submissions were made initially by council about the timely provision of final details for assessment and give some weight to the fact that council incurred additional resources in assessing the amendments. 19 In these circumstance, I consider the aforementioned amendments are not minor per s 97B(1) and therefore in accordance with s 97B(2) it is appropriate to make an appropriate order for costs, which takes into account the 'staged development application' nature of this matter. Court orders 20 The Court makes the following orders: 1 The appeal is upheld. 2 Pursuant to s97B(2) of the EP&A Act 1979, the applicant is to pay the respondent the costs that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal. The costs to be as agreed or assessed. 3 The exhibits may be returned to the parties except Exhibits L, S and Z R Hussey Commissioner of the Court 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.