Land and Environment Court of New South Wales CITATION : Buttery v Woollahra Municipal Council [2008] NSWLEC 1141 APPLICANT Gary Buttery PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 11263 of 2007 CORAM: Bly C KEY ISSUES: Appeal - Development Application :- Notice of Motion, amended plans for a two-storey attached dwelling, LEGISLATION CITED: Land and Environment Court Act 1979 Environmental Planning and Assessment Regulation 2000 Radray Constructions Pty Limited v Hornsby Shire Council 2006 NSWLEC 155 CASES CITED: Ebsworth v Sutherland Shire Council 2005 NSWLEC 603 Pepperwood Ridge Pty Limited v Newcastle City Council 2007 NSWLEC 19 DATES OF HEARING: 11/03/2008 EX TEMPORE JUDGMENT DATE : 11 March 2008 APPLICANT Mr G. Green, solicitor of Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr J. P. Merlino, solicitor of Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 11 March 2008 11263 of 2007 Gary Buttery v Woollahra Municipal Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 By Notice of Motion dated 5 February 2008, the applicant seeks leave to rely on amended plans associated with the development of 10-12 South Street, Edgecliff. The respondent opposes the motion on the basis that the pair of two-storey attached dwellings would, in the amended plans, be so different that they should not be accepted. It seems that the amended plans are in part at least an appropriate response to a number of concerns expressed by the respondent. 2 The respondent submits that the more appropriate course for the determination of an appropriate development for this site is that the applicant should pursue the separate development application presently before the council for this same site and for the same development as is described in the proposed amended plans. 3 The development application was lodged with the council in May 2007 and has been the subject of consideration, review and without prejudice discussions. The applicant is now keen for this particular application to be processed promptly given the elapsed time and does not wish the matter to be further delayed, as would be the case if it is to rely solely upon the fresh development application. 4 I have now had the opportunity of comparing the two sets of plans and I have reached an understanding of the changes that are described in detail in the architect letter dated 8 February 2008. That letter summarises the changes as follows: Reorientation of second storey bedrooms; reduced bulk and building to streetscape; greater use of timber weatherboard lining; reduction of height throughout; roof forms altered to emphasise skillion rather than gable; roof gardens introduced to upper levels; northern corridor opened through the centre of the site; two distinct dwellings presenting to South Street. 5 In Radray Constructions Pty Limited v Hornsby Shire Council 2006 NSWLEC 155, Justice Jagot considered a Notice of Motion dealing with amended plans and having quoted cl 55 of the Environmental Planning and Assessment Regulation 2000, and s 39(2) of the Land and Environment Court Act 1979, noted that a broad approach to the scope and application of cl 55 is appropriate. She also commented that the extent of change able to be authorised by agreement of the consent authority or by the court will depend on the facts of the particular case, including the nature of the site and the nature and characteristics of the proposed development. She also referred to the comment by Talbot J in Ebsworth v Sutherland Shire Council 2005 NSWLEC 603 that regulation 55 is beneficial and facultative, and intended to facilitate the making of amendments on two accounts. Firstly, to enable the applicant for consent to respond to any issues identified by the council or objectors and, secondly, to encourage a consent authority to solicit a better outcome. A broad approach to the application of the regulation is therefore appropriate. 6 In Pepperwood Ridge Pty Limited v Newcastle City Council 2007 NSWLEC 19, Talbot J considered an application to amend plans and took an approach that did not involve a quantitative assessment of the variations to determine whether they are substantial. Instead he took the approach of examining the overall concept in the context of what he described as substantial changes to the layout, specification and configuration of the proposed buildings. He reached the conclusion there that the proposal could not be regarded as an amendment or a variation of the original development. He said that that revised proposal was a new and conceptually different proposal which bears little resemblance to the original, except in its overall description of the type of the development. 7 In my view, the proposal described in the amended plans is consistent with the overall description of the type of development referred to in the original application. The question that thus arises is whether the design is or is not conceptually different. If one takes a quantitative approach, there are numerous changes to the proposal, but even if they were deemed to be substantial in the overall context, that is not a constraint under regulation 55 to allowing the amended plans to become the application. The proposed building will appear quite different by comparison with the present plans and many of the matters referred to by the architect are reflective of this, but I do not accept that this is a conceptually different proposal and am satisfied that it bears sufficient resemblance to the original proposal that these amended plans should not be rejected. 8 I have therefore decided that the plans in Exhibit D can now constitute the application for the purposes of this appeal. ___________________ T A Bly Commissioner of the Court ljr 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.