Land and Environment Court New South Wales Medium Neutral Citation: Campton v Parramatta City Council [2011] NSWLEC 12 Hearing dates: 15 February 2011 Decision date: 15 February 2011 Jurisdiction: Class 1 Before: Pain J Decision: Orders made as sought in the Applicant's Notice of Motion dated 9 February 2011 Catchwords: PROCEDURE - leave sought to rely on amended plans Legislation Cited: Environmental Planning and Assessment Act 1979 s 97B Environmental Planning and Assessment Regulation 2000 cl 55 Land and Environment Court Act 1979 s 39(2) Threatened Species Conservation Act 1995 Cases Cited: Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155; (2006) 145 LGERA 292 Category: Procedural and other rulings Parties: Peter Campton (Applicant) Parramatta City Council (Respondent) Representation: Counsel: Mr Bennett (solicitor) (Applicant) Solicitors: Pikes Lawyers (Applicant) Sparke Helmore (Respondent) File Number(s): 10868 of 2010 EX TEMPORE Judgment 1The Applicant has filed a Notice of Motion dated 9 February 2011 seeking leave to rely on amended plans and a heritage report, ecological assessment report and a stormwater drainage concept report in this Class 1 appeal. The plans and substantial supporting reports are attached to an affidavit of Mr Bennett, the Applicant's solicitor, sworn 9 February 2011. The plans and reports replace the entirety of the plans and reports filed in support of the original proposal the subject of this appeal. They were served on Parramatta City Council (the Council) approximately one week ago. 2The Council tendered the original plans, the proposed plans the subject of the Notice of Motion and photographs of the existing dwelling. This dwelling is now proposed to be demolished. 3The motion falls for consideration under cl 55 of the Environmental Planning and Assessment Regulation 2000 (the Regulation). Exercise of the cl 55 power is available by virtue of s 39(2) of the Land and Environment Court Act 1979 (Court Act). Clause 55 of the Regulation states: (1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development. (3) If the development application is for: (a) development for which concurrence is required, as referred to in section 79B of the Act, or (b) integrated development, the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body. 4Section 39(2) of the Court Act states: In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. 5The Applicant is seeking development consent for a three lot subdivision of a single block of land in Epping. The history of the application is set out in Mr Bennett's affidavit. The original application to the Council was to subdivide the lot into three and create two additional lots at the rear of the property. The existing two storey brick house on the front lot was to be retained. An amended application was made for a four lot subdivision and was the subject of the Class 1 appeal. The application was amended in the Court to seek consent for the original three lot subdivision the Council first considered. Amended reports were prepared and an additional ecological report was prepared under the seven part test in the Threatened Species Conservation Act 1995. This occurred in order to address the Applicant's ecological consultant's advice that the original three lot subdivision proposed would significantly affect an endangered ecological community located largely in the middle of the block to be subdivided. This issue was also raised in the Council's Statement of Facts and Contentions. 6The heritage impact assessment attached to the affidavit states that the property is in the Epping-Eastwood Conservation Area. The house on the property is not identified as a significant building in the conservation area but is recognised as an intact example of period architecture. 7The Applicant's solicitor argued that cl 55 applies as the application continues to be for a three lot subdivision, with access, drainage and vegetation issues broadly similar to the original proposal. The impact on vegetation in an endangered ecological community on the block is less under the proposed subdivision lay out than the original lot layout. The house to be demolished does not have special heritage significance. The development is not a new proposal but a change to the existing application before the Court. 8The Council objects to leave being granted on the basis the application is for a new development rather than an amendment of an existing development so that the application cannot come within cl 55. The demolition of the existing house is a significant change as is the change proposed to the lot layout. Finding 9The Court cannot give consent to a new development application under cl 55 as it does not have jurisdiction to consider an original development application, as recognised in numerous authorities such as Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155; (2006) 145 LGERA 292 at [6] and Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 at [40]. Clause 55 has been recognised as facultative and beneficial per Ebsworth at [40] and Radray at [8] - [9]. In light of this, a broad approach to the scope and application of cl 55 is appropriate per Radray at [9]. At [16] Jagot J considered the question to ask was whether a proposed development is an amendment or variation of the application, recognising these can lead to a changed development. 10Clause 55(2) provides that if a variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars to indicate the nature of the changed development. The plans and reports attached to Mr Bennett's affidavit provide that information. Each matter must depend on its own facts as to whether an application is for a new development, which cannot be permitted, or is a changed development which can be permitted under cl 55. Factors to consider include the nature of the site and the nature of the proposed development per Radray at [8]. 11The Court has discretion as to whether an application to amend ought be granted in the exercise of its power under s 39(2). In Radray Jagot J held at [10] that the beneficial purpose of the provision is relevant to the exercise of power by the Court. The circumstances in which the application is made are relevant, such as timing and the reasons for the application. 12The Applicant accepts an order that the Council's costs arising under s 97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed be paid. 13Considering the particular matter before me, the amended application is for a three lot subdivision with a different lot layout to the original application. A consequence of the change is that the existing house must be demolished, an important change. The application to amend is made following the commissioning of additional ecological advice by the Applicant concerning the impact of the original proposed subdivision on an endangered ecological community of vegetation on the site. According to the Ecological Issues and Assessment Report dated 9 February 2010 attached to Mr Bennett's affidavit, the changed lot layout and location of buildings will minimise the impact on that community so that there would be no likelihood of a significant effect on that community. 14The proposed amendments to the subdivision result in a changed development. The fundamental nature of the development as a three lot subdivision is unchanged in the amended plans. That the existing dwelling is now proposed to be removed, and is an important change, does not alter that conclusion. The issues will broadly remain the same with the possible addition of heritage issues in relation to the demolition of the house. The power under cl 55 to allow an amendment is available in these circumstances. 15The Court has discretion whether to allow the amendment. There is no specific prejudice referred to by the Council if the amendment is made, provided that it has adequate opportunity to assess the proposal and to notify the public of the amended development and to assess any submissions made. The five weeks needed by the Council for further assessment and notification is reasonable. The amended plans are intended to address the impact of the development on an endangered ecological community located on the lot. The matter has yet to be set down for a s 34 conference. These circumstances suggest that I should exercise my discretion under cl 55 to make the orders sought in the motion. I consider I should make the orders sought by the Applicant's Notice of Motion dated 9 February 2011. ********** 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. Decision last updated: 16 February 2011