Land and Environment Court of New South Wales CITATION : Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 APPLICANT Gordon & Valich Pty Ltd PARTIES : RESPONDENT Council of the City of Sydney FILE NUMBER(S) : 10817 of 2007 CORAM: Preston CJ Development Application :- application in form to amend an existing development consent - application in substance to carry out works, erect a residential flat building and use building and works for that purpose - consent authority should look to substance not form of application - matters to be considered therefore relate to substantive development and not merely amendments to existing consent KEY ISSUES: Practice and Proceedure :- application to strike out Council's contentions - development application - application in form to amend an existing development consent - application in substance to carry out works, erect a residential flat building and use buildings and works for that purpose - consent authority should look to substance not form of application - matters to be considered therefore relate to substantive development and not merely amendments to existing consent - Council's contentions relating to such matters appropriate and should not be struck out LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 4(1), s 78A(1), s 78A(2), s 79C, s 80, Land and Environment Court Rules 1996 Pt 16 r 4 CASES CITED: Port Stephens Council v Sansom [2007] NSWCA 299 DATES OF HEARING: 16 November 2007 EX TEMPORE JUDGMENT DATE : 16 November 2007 APPLICANT Mr I Hemmings (barrister) SOLICITORS Hones Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A Galasso SC SOLICITORS Maddocks Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PRESTON CJ 16 NOVEMBER 2007 10817 OF 2007 GORDON & VALICH PTY LTD V CITY OF SYDNEY COUNCIL JUDGMENT 1 HIS HONOUR: The applicant appeals to this Court against the deemed refusal of City of Sydney Council of the applicant's development application in relation to a development at 207 Darlinghurst Road, Darlinghurst. 2 The development application is somewhat unusual is that it proposes, in effect, to amend the existing development consent by, inter alia, a change of use from residential to hotel suites and to delete the parking levels below the ground. 3 The development application was accompanied by a Statement of Environmental Effects dated April 2007 which set out the proposed amendments to the development consent. 4 The Council had not determined the matter before the applicant appealed to the Court invoking the deemed refusal provisions. 5 Once in the Court, the Council, as required, filed a statement of facts and contentions. In that statement of facts and contentions, the Council raised a number of contentions supporting the refusal of the development application. 6 These included non-compliance with the principal objectives of South Sydney Local Environment Plan 1998 and the objectives of the Zone 10 -Mixed Use (contention 1); that the proposal did not comply with the objective, performance criteria and controls of Part E 2.3 - Height and Scale of the South Sydney Developmental Control Plan 1997 (contention 2); that the proposal severely exceeds the permitted FSR for the site specified under Part E, Environmental Design Criteria of South Sydney Developmental Control Plan 1997 (contention 3); that the proposal does not comply with Council's separation or setback controls and does not adequately or appropriately address the original villa (contention 4); that the intensification of the use is not considered compatible with the surrounding built environment and will provide limited amenity for the intended occupants (contention 6); and that through non-compliance with the above controls the proposal is inconsistent with the City of Sydney Visitor and Tourist Accommodation DCP 2006, clause 2.1, 2.3 and 2.4 (contention 8(a)(b)). 7 The matter was referred by the Registrar for case management before a Commissioner of the Court. In the course of that case management an issue arose as to the proper scope of the matters that should be considered in assessing and determining the development application. 8 The applicant contended that the relevant inquiry was limited to only the alterations and additions from the development the subject of the previous development consent. The matters under s 79C of the Environmental Planning and Assessment Act 1979 were only relevant insofar as they applied to these alterations and additions. 9 For example, the applicant referred to the fact that the development the subject of the development consent proposed six storeys, whilst the development the subject of the new development application proposes five storeys. Hence, the applicant said, the matters in 79C could only be considered in relation to the reduction in height from six storeys to five storeys and that the resultant five story development itself could not be considered through the lens of s 79C. 10 The Council, on the other hand, contested that the analysis should be as limited as proposed by the applicant. The Council said the resultant development needs to be considered in terms of s 79C. 11 As a consequence of this dispute between the parties, the Commissioner who presided at the case management recommended that the question of what is the proper scope of analysis should be determined by a Judge as it would regulate both the preparation for and the conduct of the hearing of the appeal. 12 The mode suggested was that there should be a notice of motion to strike out the contentions to which I have earlier referred so far as they seek to look at the whole resultant development rather than the individual alterations and additions. 13 The applicant followed this course and by notice of motion dated 4 October 2007 moved the Court for orders that contentions 1, 2, 3, 4, 6 and 8(a) and (b) of the Council's notice of basic facts and contentions dated 17 September 2007 be struck out. 14 The notice of motion was supported by an affidavit of Mr Hones of 4 October 2007 which attached the Statement of Facts and Contentions. In addition, the development consent that had been previously granted together with the plans approved by that consent were tendered. The plans the subject of the new development application were tendered for comparison. 15 At the outset, it should be noted that the development application is inaccurate in its description of the development. I have said, the application sought to amend the existing development consent in certain ways. Under the Environmental Planning and Assessment Act 1979, a development application can only be made seeking consent for the carrying out of development: s 78A(1). 16 "Development" is a defined term: see s 4(1). It includes the use of land, the subdivision of land, the erection of a building, the carrying out of a work, and the demolition of a building or work. A development consent may be granted authorising the carrying out of development of one or more of these types. A development consent, however, is not itself development. The Environmental Planning and Assessment Act does not permit the lodging of a development application to amend a development consent; rather only to carry out development of one or more of the types falling within the definition of development (see s 78A(2)). 17 Of course, if development consent is granted for the carrying out of development as defined, a condition of consent for that development may be able to be imposed requiring the modification or surrender of an earlier development consent: see s 80(1)(b) and (5). It may also be that even without a formal condition requiring modification, the grant of and the carrying out in accordance with another development consent may have such a consequence. In either case, this might be a consequence but it would not be the purpose of the development consent. 18 In this case, the application clearly does propose the carrying out of development notwithstanding the description of the development as being the amendment of the existing development consent. It proposes the carrying out of works, the erection of a building, and the subsequent use of land. If development consent were to be granted for the carrying out of these various types of development, a condition of consent could be imposed under s 80A(1) which might modify any earlier development consent, including the consent in question in this case. However, as I have noted, this would be the consequence but not the direct purpose of the development application. 19 The misdescription in the development application of the development as being the amendment of the existing development consent does not necessarily mean that the development application is incompetent. The fact that somebody describes development in a particular way does not necessarily lead to invalidity; one looks to substance not form. The important point is to understand what is the particular development that is being proposed and that can be understood by looking at the particular plans accompanying the development application. 20 When one looks at the plans accompanying the development application, one can see the development is substantially different from that which was originally approved by the existing development consent. That of course, I hasten to add, does not mean that is not an acceptable development. The acceptability of the development is yet to be determined in a merit assessment at a hearing. However, when one compares the development at every level and on every elevation, there are significant differences and there is a significant difference in the uses proposed, from hotel to residential. 21 It is in this context that one comes to consider the Council's contentions in its Statement of Facts and Contentions. The Council's contentions look at the development that would result from carrying out the particular works, erecting the building and using the land in the ways that have been proposed in the development application. They evaluate that development against the relevant controls in the applicable local environmental plan and applicable development control plan, and more generally against planning criteria. It cannot be said that those matters are irrelevant in the sense that a consent authority, assessing the development application which proposes those particular works, buildings and uses, would be bound to ignore the matters. 22 If one took, just to give one example, the issue of height. The proposed development still will reach the maximum height limit at a particular point. The feature of the building that causes it to breach the height limit is different and located at a different location to that feature which breached the height limit under the existing development consent. There is also a reduction in height in certain parts of the building in the proposed development to that which was approved under the existing development consent. 23 However, those features which breach the height limit have to be looked at in their context. When one looks at the proposed plans and compares them to the development that was approved by the existing development consent, one sees that at every level there is a difference. It is not simply a matter of the deletion of one story, it is an overhauling of the whole of the development from below ground to the top of the building. 24 The height also has to be considered in the context of the other aspects of the building including its bulk and scale and design features. It is not absolute height that is always what is important. It is its perceived height and how it interrelates with other buildings and the impacts it has on the streetscape and surrounding development. 25 In this context, it would be artificial in the extreme to look only at that part of the building that previously breached the height limit and compare it to the new part of the building which breaches the height limit divorced from the broader contextual inquiry and the rest of the building. 26 The other matters that are raised by the Council in its contentions can similarly be shown to be relevant. 27 In these circumstances, there is no warrant to strike out each of the contentions challenged by the applicant. As I have said, that would only be appropriate if on no proper construction of the development proposed in the development application could it be said that the matters raised in those contentions could be relevant. That is not the case when one looks at the proposed development. 28 For these reasons, the notice of motion of the applicant is dismissed. 29 The Council seeks its costs of the motion. The rule that governs ordering costs in this type of proceedings is Pt 16 rule 4(2) of the Land and Environment Court Rules 1996, which provides that there should be no order for costs unless the Court considers it to be fair and reasonable in the circumstances. As to the ambit of that rule, see the recent Court of Appeal decision in Port Stephens Council v Sansom [2007] NSWCA 299. 30 I have set out earlier the circumstances which led to the applicant bringing this application before the Court. Although the applicant has been, for the reasons I have just given, unsuccessful in its application, nevertheless I consider it was an appropriate course to undertake and arose from the case management process. I do not consider that in the circumstances it would be fair and reasonable to order the applicant to pay the Council's costs of the motion. 31 For the future case management of the matter, I direct that the matter be listed before the Registrar for a directions hearing and the making of directions for the further preparation of the matter on Wednesday 21 November 2007. ********** 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.