Land and Environment Court of New South Wales CITATION : Globe Capital Properties Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1415 APPLICANT Globe Capital Properties Pty Ltd PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10495 of 2009 CORAM: Tuor C - Dixon C KEY ISSUES: COSTS - DEVELOPMENT APPLICATION :- application for amended plans whether amendments not "minor" and therefore require cost order under s97B LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Groeneveld v Wollongong City Council [2009] NSWLEC149 CASES CITED: Coshott v Woollahra Council [1996] NSWLC256 Futurespace Pty Ltd v Ku ring gai Council [2009] NSW LEC 153 DATES OF HEARING: 1 December 2009 DATE OF JUDGMENT: 17 December 2009 APPLICANT Mr I Hemmings, barrister SOLICITORS LEGAL REPRESENTATIVES: Veritas Legal RESPONDENT Mr M Craig, SC SOLICITORS HWL Ebsworth Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Dixon C Tuor C 17 December 2009 10495 of 2009 Global Capital Properties Pty Ltd v Ku-ring-gai Council JUDGMENT Introduction 1 The Court has allowed the applicant, Global Capital Properties Pty Ltd, leave to file an amended development application in its appeal under s 97 of the Environment Planning and Assessment Act 1979 (the Act) against the refusal by Ku-ring-gai Council (the council) of a development application for a residential flat building at 6A-8 Buckingham Road, Killara (the site). 2 The Court must now determine whether the amended development application is, "other than minor" and triggers the mandatory cost provision in section 97B of the Act which 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. Background 3 The site consists of three allotments. It is located on the southern side of Buckingham Road and interfaces with lower density zones, including residential zones to the west, south and east. Relevantly, it adjoins a heritage item at 10 Buckingham Road and a golf course. 4 The original development application seeks approval to demolish the existing residential dwellings on the site to allow the construction of a residential flat building with two buildings (buildings A and B) comprising 32 units and parking for 66 cars. 5 The original development application was lodged on 20 February and refused by the council on 5 May 2009. The applicant appealed council's refusal and lodged a request to review the decision under s 82A of the Act. The s 82A plans were substituted in the appeal on 23 September 2009 and constitute the original development application for the purpose of this motion. The contentions between the parties 6 The contentions raised by the original development application are set out in the Council's Statement of Facts and Contentions dated 2 October 2009. Most relevant for the determination of this motion are the following contentions: B1 The proposal, at both building A and B, breaches the storey control in clause 25l of the KPSO and is thereby prohibited. B2 The floor area of the top storey of each of building A and B exceeds the floor area allowed for each such storey by Division 5 of Part lllA of the KPSO and the proposal is thereby prohibited. B3 The ceiling height of building A exceeds the maximum perimeter ceiling height permitted by Division 5 of Part lllA of the KPSO and the proposal is thereby prohibited. B4 The proposal does not achieve the minimum deep soil landscaped area required under clause 25l(2)(c) of the KPSO and is thereby prohibited. 7 The council contends that the proposal is prohibited as no objections under State Environmental Planning Policy No 1 – Development Standards (SEPP 1) have been submitted to vary the development standards. The applicant contends that the standards are not breached and therefore no SEPP 1 objections are required. This difference in opinion is based on different interpretations of the clauses. To remove this ambiguity, the applicant has amended the plans to comply with council's interpretation of the clauses. The notice of motion to rely on the amended development application 8 The applicant's notice of motion to rely on the amended development application was filed on the 23rd November 2009 and is supported by the affidavit of Mr R Qutami sworn on that date. At paragraph 6 Mr Qutami says: "In an attempt to narrow the matters in contention and in dispute the applicant seeks leave to file amended plans, which may reduce the matters in dispute and the issues to be tried at a hearing." 9 The affidavit says that the amended plans were prepared after a consideration of the Statement of Facts and Contentions, in particular the contentions B1, B2 and B3, under the heading prohibited development. 10 The applicant's affidavit annexes a schedule of changes (Figure 1 in this judgement) prepared by its architect, Aleksander Design Group Pty Limited, on 18 November 2009 and refers to the amended plans which are exhibit A and the original development application plans which are exhibit B. 11 The Council relies on the affidavit of Council's town planner, Ms K Munn, sworn on 1 December 2009, which reviews the amended plans. At paras 11 and 12 she says "I have endeavoured to review each of the plans against those last amended" and "…From a planning perspective, I am of the opinion that there are a significant number of changes proposed by the amended plans. I have attempted to provide a full assessment of whether the proposal complies with key development standards contained within the KPSO and in particular in contentions B1, B2 and B3 in the available time." 12 At para 13 Ms Munn states she has "…not undertaken an assessment of the amended landscape plan this will be required to be undertaken by council's landscape officer. Similarly, I have not reviewed the amended shadow diagrams, as these will need to be reviewed by council's urban designer. However, I am of the view that there will be changes as a result of one unit being deleted from building A being located within building B this may have some implications for the development's compliance with the solar access provisions of the residential flat design code as building B is down slope of building A and faces to the south." 13 Ms Munn's affidavit goes on to say that the amendments have also altered the buildings relationship with adjoining properties as a result of changes to setbacks and depth of balconies and a full assessment of the amendments will need to be undertaken. Residential amenity may also need to be reconsidered as a result of changes to the internal configuration of the units. 14 Ms Munn concludes that the proposed amendments to the development may, subject to further review, potentially result in detrimental privacy impacts particular upon the adjoining properties at 8A and 10 Buckingham Road, arising from the amendments made to balconies/decking and changes to setbacks. 15 At the hearing of the motion the applicant's counsel, with the assistance of the applicant's architect, took the Court through the amendments to the plans. Ms Munn clarified the particular changes and details from her perspective. 16 Ultimately, the agreed position of the parties is that the amended development application (subject to further detailed assessment) appears to resolve contentions B1, B2 and B3 and avoid the need for SEPP1 objections. 17 If this is the fact, then the amended plans move the development from a prohibited development requiring a SEPP 1 to a permissible development. The Applicants' Submissions. 18 The applicant submits that every amendment, whether minor or not, needs to be assessed by the council because that is its statutory function. Furthermore, a decision to re notify this application (which is a discretionary decision under council's policy) does not support an interpretation that the amended development application is other than minor. 19 In support of this submission the applicant relies on the decision in Groeneveld v Wollongong City Council [2009] NSWLEC149 at para 32 wherein Preston CJ determines renotification to be "an irrelevant consideration in determining whether or not the amendments should be classified for the purposes of Section 97B(1) as minor amendments." 20 The applicant submits that s 97B is unclear on its face and to assist with its interpretation it is appropriate to have regard to an extract from the Minister's second reading speech, which introduces the section to Parliament. It reads: The Bill provides that in a class one appeal before the Land and Environment Court where the Court allowed an applicant to amend a development application -- other than a minor amendment -- the Court must order that the applicant pay the consent its costs thrown away as a consequence of the amendments. This is to act as a disincentive to applicants seeking to amend their proposals before the Court without community consultation or input from council and other relevant authorities. 21 The applicant relies on the decision in Coshott v Woollahra Council [1996] NSWLC256 and Bannon J's reasoning when deciding what constitutes a minor change that: It is a matter if degree whether changes are major or minor. In a small project any change may be major. In a large scale project such as a three or four storey Vaucluse mansion, the relative effect of change may be minimal. 22 The applicant after highlighting the changes introduced by the amended application submits that many of them could be dealt with by a condition and therefore it follows that they are minor amendments for the purposes of s 97B. 23 The applicant submits that the amended development application does not raise any new issues but rather reduces the contentions raised by the council. 24 The applicant, in explaining each amendment considered in the context of the whole development, says that the amendments only change the detail of the application not the concept. 25 The applicant submits that the original development application is for a residential flat building with two buildings and that the amended development application is for the same concept or development. The applicant says that the amended development application makes no "material" change to the development, such as was discussed in Groeneveld. 26 The applicant also invites the Court to consider replacing the word "minor" with the word "material" to better appreciate the meaning of the provision. The applicant submits that the Court adopted this approach in Groeneveld. Furthermore, the applicant suggests a consideration of the Queensland case law would shed light on the meaning of s 97B in the NSW Act. 27 The applicant says that the proper interpretation of the section in this case is that the amendments are minor and therefore s 97B(2) does not apply. Council's submissions 28 The council submits the wording in s 97B is clear and unambiguous and a consideration of the Minister's reading speech is not relevant or appropriate to discern the meaning of the section. 29 Furthermore, the meaning of the words "other than minor amendments" within the section are not better understood by a consideration of Queensland jurisprudence dealing with different legislation and in a different context. 30 The council submits the words simply mean what they say: if the amendments are other than minor then the section requires that the Court order that the applicant pay the council's costs that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal. 31 The council's evidence is that the amended development application proposes significant changes including moving the development from a prohibited development to a permissible development. Ms Munn's evidence is "…there are a significant number of changes proposed by the amended plans." which she goes on to say "…requires an assessment of compliance with key development standards as raised in contentions B1, B2 and B3." Ms Munn's notes that the amendments also "…alter the buildings relationship with adjoining properties as a result of changes to setbacks and depths of balconies and a full assessment of the amendments will need to be undertaken." 32 Ms Munn says that in addition to a planning assessment the amendments will also need to be assessed by council's landscape and urban design officers. 33 The evidence is that the amendments require a reassessment of the application because the amended plans change the original application and its impact. It is this change in impact that the council says supports a determination that the amendments are other than minor. The council relies on the Court's reasoning in Groeneveld at para 29 wherein Preston CJ says: 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 the 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 road and the new methods of construction of the road had for the retention or removal of the trees. It is significant changes to the trees to be retained and removed that causes these amendments to not be able to be classified as minor. 34 The council submits that the Court, in its assessment of whether an amendment to the original development application is minor or not, must be undertaken having regard to the context of the development and its location. 35 The council refutes the applicant's suggestion that these amendments are changes to the detail of the original development application and to that end relies on its planner's assessment that they are significant changes, which require extensive reassessment by council. Council refers to the principles summarised in Futurespace Pty Ltd v Ku ring gai Council [2009] NSW LEC 153 where at para 42 Pepper J states: 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]). 36 Council submits that applying those principles results in a determination that this amended application proposes changes, which are other than minor. 37 In particular the Court is referred to para 43 in Futurespace wherein the Court accepted that if the amendments require significant assessment by the consent authority than they are less likely to constitute minor amendments for the purposes of the provisions. 38 The council relies on Her Honour's determination at para 44 in Futurespace (which concerned a not dissimilar residential flat building in Ku ring gai Council area) that if "the amendments will require a full assessment by council of compliance with the Kur ring gai Council Local Environment Plan 194 in respect of the deep soil component of the proposed development and an assessment of the impact of the changes to the top floor on the privacy of the neighbors. These alone make the amendments more than minor." 39 Council says that this application also requires an assessment of those issues and more, and while each case is to be considered on its own facts, the assessment in Futurespace is relevant to the case at hand. 40 The council says that the fact the changes are responsive to the issues raised is not relevant in determining whether or not the amendments should be classified as minor and relies on the decision of Groeneveld at para 31 where Preston CJ states: It may be accepted that the amendments did not cause an entirely new issues to be raised. Nevertheless, the amendments did require an existing issue to be re assessed; in particular, they required the reassessment 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" 41 The council submits that the amended development application makes a number of significant changes to the original development and those amendments have significant impacts that need assessment. The council says the changes cannot be described as minor and therefore it seeks its costs pursuant to s 97B (2). Findings 42 The Court accepts the council's submission that the words in section 97B are clear and therefore a consideration of the extraneous material such as the minister's second reading speech is not necessary or relevant in this case. 43 There is however, assistance in the limited case law on the interpretation of the section particularly the Court's decisions in Groeneveld and Futurespace. 44 The applicant's evidence is that the amendments are minor because there is no "material" change and the development concept remains the same. The amended development application was prepared to resolve the contentions in B1, B2 and B3, which based on council's assessment of the controls, prohibited the development. After a redistribution of the floor space and other changes of detail the application, in its amended form, has narrowed the issues. 45 Council's evidence is that Contentions B1, B2 and B3 go to the heart of the appeal because unless resolved the application is, without a SEPP1 being lodged and upheld, prohibited. Furthermore to determine whether the amendments resolve those issues a significant reassessment of the application is required because the changes proposed have different impacts to the original application, even if issues are resolved. 46 Council's planning evidence is that the amendments "have also altered the building's relationship with adjoining properties as a result of changes to setbacks and depths of balconies and a full assessment of the amendments will need to be undertaken. Residential amenity may also need to be reconsidered as a result of changes to the internal configuration of the units". 47 Although the applicant says that the landscape issue (B4) is resolved by a narrowing of the footpaths the change still requires an assessment by council's landscape officer and this together with the other changes described by council's planner requires reassessment by council which on the reasoning in Futurespace means it is less likely that these a minor amendments. 48 It is difficult not to accept the council's submission in the circumstances of this particular case that the amendment of the original application such as to move it from a prohibited use to a permissible use coupled with the other design changes discussed including the addition of balconies and windows on the western façade of the building which adjoins a heritage item are other than minor amendments in the context of this appeal. 49 In adopting the reasoning of the Court in Groeneveld we have in our assessment of whether the amendments to this development application are minor had regard to the context of the development and its location. 50 This is a development application for a residential flat building with two buildings. After the amendments, the concept is the essentially the same a residential flat building comprising two buildings with the same number of units, a reduction in the number of bedrooms from 88 to 87, the amendments do not impact on the floor space ratio (FSR) and the footprint of the development remains the same, the same number of car spaces are provided, and there is a reduction in the width of the footpaths. However, it is not to the point to say that the development still remains, in broad terms the same, according to the decision in Groeneveld this does not determine whether the amendments are minor. Preston CJ at para 31 says: …to say the development still remains, in broad terms, the subdivision of land, the carrying out of associated works including the 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. 51 The case law on the point as to whether an amendment is a matter of detail is relative to the significance of the changes for the development as a whole. In the context of this appeal the amended development application cannot be said to propose changes to the original application such as to be described as minor amendments. 52 The applicant could have challenged the council's interpretation of the controls at the hearing and/or lodged a SEPP1 against compliance, however, it elected to amend its original development application in the course of the appeal and this decision has resulted in changes and a need for reassessment of the application. 53 The section is clear, if the changes are other than minor, the Court has no discretion but to apply the cost consequence triggered in that circumstance by section 97B(2). 54 We note the comments of Pepper J in Futurespace at para 38: 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". 55 However, in the circumstances of this case the evidence supports a finding that the applicant has been allowed to file an amended development application other than to make a minor amendment under section 97(1) and the Court in accordance with section 97B(2) must make an order for costs. Orders 56 The orders of the Court are: 1. Pursuant to s 97B(2) of the Environmental Planning and Assessment 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 this appeal. 2. The costs to be as agreed or assessed. ___________________ Annelise Tuor Commissioner of the Court ___________________ Susan Dixon 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.