Nanevski Developments Pty Ltd v Rockdale City Council [2009] NSWLEC 1423

Land and Environment Court of New South Wales

CITATION : Nanevski Developments Pty Ltd v Rockdale City Council [2009] NSWLEC 1423

APPLICANT Nanevski Developments Pty Ltd PARTIES : RESPONDENT Rockdale City Council

FILE NUMBER(S) : 10721 of 2009

CORAM: Acting Registrar Gray

KEY ISSUES: DEVELOPMENT APPLICATION :- Notice of Motion - seeking leave to rely on amended plans - s97B costs - whether the amendments are a minor amendment

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Futurespace Pty Ltd v Ku-ring-gai Council [2009] 169 LGERA 45, NSWLEC 153

DATES OF HEARING: 3 December 2009

DATE OF JUDGMENT: 18 December 2009

APPLICANT Mr D Briggs (solicitor) SOLICITOR LEGAL REPRESENTATIVES: D G Briggs and Associates RESPONDENT Mr J Reilly (solicitor) SOLICITOR HWL Ebsworth Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Acting Registrar Gray

18 December 2009

10721 of 2009 Nanevski Developments Pty Ltd v Rockdale City Council

JUDGMENT 1 REGISTRAR: The applicant in these proceedings has filed a notice of motion, dated 1 December 2009, seeking leave to rely on amended plans. The respondent, Rockdale City Council, consents to such leave being granted. As a result, the application of s 97B of the Environmental Planning and Assessment Act 1979 arises for consideration. 2 The proceedings relate to a development application made by the applicant seeking approval for the demolition of two existing dwelling houses and the construction of a three storey building with basement car parking for use as a residential care facility. The proposed amendments to the plans are helpfully set out in detail in the affidavit of Mr Briggs sworn 1 December 2009. Other than the proposed extension of the basement floor plate and the provision for ambulance parking, the amendments propose changes to the internal layout of the building and can be summarised as follows: o Changes to the number of car spaces, including disabled car spaces and the location of the loading zone; o Changes to the orientation of the lift; o Deletion of some resident rooms and changes to the other rooms, including changes to room size, number of beds, and the location of access to bathrooms; o Relocation of areas and rooms, and creation of additional areas and rooms, including maintenance room, store rooms, pan rooms, kiosk area, nursing station and treatment room; and o Changes to the layout of bathrooms, the laundry, kitchen and lounge area. 3 Section 97B provides as follows: 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) … 4 Section 97B creates an obligation on the Court to make a costs order in favour of the respondent in circumstances where the amendments are other than a "minor amendment". In my view, by virtue of the wording of s 97B(1), the Court is required to make a costs order in accordance with s 97B(2) unless the applicant establishes that the amendments are a "minor amendment". 5 In Futurespace Pty Ltd v Ku-ring-gai Council [2009] 169 LGERA 45, NSWLEC 153, Pepper J helpfully set out the principles relevant to the Court's consideration of whether an amendment is a minor amendment. Her Honour set out at [42]: