Land and Environment Court New South Wales Medium Neutral Citation: Zheng v Hurstville City Council [2014] NSWLEC 1059 Hearing dates: 3 December 2013 Decision date: 04 April 2014 Jurisdiction: Class 1 Before: Hussey C Decision: Amendments considered minor and costs not justified Catchwords: Costs: Application for costs pursuant to s97B of the Environmental Planning and Assessment Act 1979 Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Futurespace Pty Ltd v Ku- ring-gai Council [2009] NSWLEC 153 S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 167 Category: Principal judgment Parties: Xiao Ping Zheng (Applicant) Hurstville City Council (Respondent) Representation: Mr K Webber (Applicant) Mr M Cottom (Respondent) Wilshire Webb Staunton Beattie Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 10162 of 2013 Judgment Background 1This matter concerns whether costs under s 97B of the Environmental Planning and Assessment Act 1979 should be payable to the Respondent in respect of amended plans to which leave was granted on 29 November 2013 to rely upon. The original development proposed a four unit (affordable) housing development at 4 Clarendon Road, Peakhurst. 2The amendments mainly arose because the site is subject to flooding and the Applicant initially provided a two-dimensional flood study in support of the application. However during the appeal process the Applicant undertook a further three-dimensional flood study to more accurately estimate likely flooding impacts. Consequently, in response to this updated flood study the following amendments were made: 1 The stairs from the basement to the ground floor have charged and a lift added. 2 The setback from the rear boundary (north) to building at Ground floor level has been reduced by 0.75m. 3 The basement car park has been reduced on its northern end by 3.5m with loss of 1 car space. 4 Car spaces 2 and 3 have been combined to facilitate one disabled access car space. 5 The finished floor level of the development has been increased by 0.9m (FFL 14.70 to 15.60). This increase in height necessitated the addition of steps to the Court yards of units 2, 3 and 4. 6 Alterations to the stormwater plan. 3When leave was granted on 29 November to rely upon the amended plans, the question of costs was reserved. Any cost order is subject to the following provisions: 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 are thrown away as a result of amending the development application. (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. The submissions 4In recognition of the amendments, the Applicant submits that the proposal remains for four (4) units albeit 0.9m higher, with Unit 4 being reconfigured and the proposal retaining the original front and side setbacks and therefore the amendments are minor. 5The submissions of both parties referred to the authority on costs as stated in Futurespace Pty Ltd v Ku- ring-gai Council [2009] NSWLEC 153 wherein Pepper J stated at para 42: 42 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]). 6Accordingly, the submissions for the Respondent are that the cumulative effect of the aforementioned amendments, when considered in the context of a four (4) unit development that is located on a flood constrained site with part of the development overhanging the floodway, results in more than a minor amendment. 7Furthermore, significant reassessment of the development was required in terms of the planning, flooding and traffic implications arising from the revised flood study. Also: * Whilst the amendments did not involve a change in concept or raise an entirely new issue, this does not mean that they are "minor". * Merely because the amendments were responsive to Council's contentions and, to some extent narrowed the issues in contention between the parties is not relevant to the determination of whether they are minor. * The fact that the development application did not require re-notification by Council is an irrelevant consideration in determining whether or not the amendments should be classified as minor. * Given the Court is now considering the issue of s 97B after the substantive proceedings have been determined, it is already aware that Council will have incurred significant costs in relation to the amendments. 8Mr Cottom also submits that when a comparison is made between this case and the quotes from the following cases referred to in S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 167 at paras 10 and 12, the extent of the amendment is greater here. 10 In Nanevski Developments Pty Ltd v Rockdale City Council [2009] NSWLEC 1423 at [10] Acting Registrar Gray held: "In these proceedings, I accept that individual changes made to the internal layout relate only to mere detail. However, the cumulative effect of those amendments results in changes in the number of car spaces, the number and nature of facilities and amenities provided for residents, the number of beds for residents, the number of staff and the facilities provided for the staff. Whilst they may not result in any significant re-assessment by the Council's town planner in relation to the compliance of the proposed development with planning controls, I nonetheless accept that these changes will require the Council to assess the plans and re-consider aspects of the development for which the applicant seeks approval. The cumulative nature and extent of those changes therefore renders them something other than a minor amendment. Simply because the amendments do not change the building footprint or the externality of the building does not make them a 'minor amendment'." 11 In Globe Capital Properties Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1415 at [50] - [51] Tuor C and Dixon C held: "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... 51 ...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." Conclusion 9Having considered the submissions in the context of the relevant Futurespace principles, I am satisfied that the amendments for which leave was granted are minor. In this regard, I note that the revised flood study did involve some reassessment but that was in the context that it was admitted as an exhibit in the proceedings rather than being part of any leave granted to amend the development application. 10Dealing then with the amended plans, it seems to me that the main changes involve the raising of the height of the overall building, together with the reduced rear setback/cantilevered section for Unit 4 and limited internal reconfiguration. In my assessment these (combined) amendments do not change the cumulative or overall effect in the context and location of the proposed development (Principle (b)) or any significant (my emphasis) reassessment of the development application (Principle (c)). 11In these circumstances where I consider the amendments to be of a minor nature, I do not consider an order for costs under s 97B is justified. R Hussey 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. Decision last updated: 07 April 2014