Land and Environment Court New South Wales Medium Neutral Citation: Howard-Jones v Leichhardt Council [2015] NSWLEC 1309 Hearing dates: 30 July 2015 Decision date: 05 August 2015 Jurisdiction: Class 1 Before: O'Neill C Decision: The Applicant's Notice of Motion dated 28 July 2015 seeking leave to amend the application is dismissed. Catchwords: NOTICE OF MOTION: motion to amend the application; whether amended architectural plans constitute a new application; whether the Court's discretion should be exercised in favour of the applicant. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Waite v Blacktown City Council [2004] NSWLEC 157 Hakim v Canada Bay City Council [2006] NSWLEC 746 Category: Principal judgment Parties: David & Annaleise Howard-Jones (Applicant) Leichhardt Municipal Council (Respondent) Representation: Counsel: Mr G. McKee solicitor (Applicant) Mr M. Bonanno solicitor (Respondent) Solicitor: McKees Legal Solutions (Applicant) Leichhardt Council (Respondent) File Number(s): 10374 of 2015 Judgment 1. COMMISSIONER: Appeal No. 10374 of 2015 is an appeal against the refusal of Development Application No. D/2015/98 by Leichhardt Council for alterations and additions to an existing dwelling at 5 Phoebe Street, Balmain. This judgment deals with the applicant's Notice of Motion dated 28 July 2015 to amend the application in respect of the appeal. 2. Attached to the applicant's Notice of Motion is a set of architectural plans identified as Revision E and dated 23.7.15 and a schedule of amendments to architectural plans for each of the five issues of the plans. The Notice of Motion seeks an order that the applicant be granted leave to rely on the Revision E set of architectural plans. Leichhardt Council (the Council) opposes leave being granted on the basis that the set of architectural plans attached to the applicant's Notice of Motion constitute an original development; the proposal in the plans attached to the Notice of Motion does not address the Council's contentions and raises new issues. Mr Mark Bonanno, the Council's solicitor, filed an affidavit outlining the communications between the applicant and Council and attached to the affidavit are copies of emails exchanged between the parties. 3. The appeal was set down for mandatory conciliation and arbitration under s 34AA of the Land and Environment Court Act 1979 (LEC Act), on 8 July, 2015. On 8 July, following the site view, the hearing of evidence from resident objectors and the commencement of the conciliation at Court, the conciliation was adjourned until Monday 3 August, 2015, for the applicant to provide Council with amended plans, consistent with a set of plans presented by the applicant at the conciliation conference, for the purpose of the further joint conferencing of the experts and for the Council to notify the objectors of the amended proposal. Statutory and policy framework 1. The relevant sub-sections of cl 55 of the Regulation provide: 55 What is the procedure for amending a development application? (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. 1. The Court's Practice Note 'Class 1 Residential Development Appeals' (the Court's Practice Note) relevantly includes the following in relation to amendments to applications and adjournments of residential development appeals: Amendments to applications and to statements of facts and contentions 37. Subject to paragraph 12 [applicant may amend plans to satisfy the requirements of Schedule A before lodging the appeal application, without leave of the Court], an applicant requires leave of the Court to amend its residential development appeal application, including to amend the plans for the residential development proposed in the application. Applicants should ensure, before commencing their residential development appeal, that their residential development appeal application, and the residential development proposed in the application, is considered, complete and final and suitable for assessment at the final hearing including ensuring that the plans satisfy the requirements in Schedule A. 38. If an applicant wishes to amend its residential development appeal application, including by amending plans, the applicant is to apply for leave as soon as reasonably possible and usually no later than 3 working days after the facts and circumstances which prompted the application for leave came to the attention of the applicant. Examples of such facts or circumstances are the receipt of a report of a parties' single expert or a joint report of parties' experts recommending modification of the proposed development, which recommendation the applicant wishes to adopt in whole or part. 39. Other than amendments sought during the final hearing of the residential development appeal, leave to rely on an amended residential development appeal application, including amended plans, is to be sought by notice of motion, accompanied by a short affidavit in support that: (a) provides particulars sufficient to indicate the precise nature of the amendments proposed; (b) identifies any amended plans by date and plan revision number; (c) identifies the facts or circumstances which prompted the application for leave and when they came to the attention of the applicant; (d) identifies the respects in which the amendments lessen the environmental impact of the development and/or otherwise lead to an improved community outcome; (e) identifies why granting leave to amend the application would promote the just, quick and cheap resolution of the proceedings; (f) discloses if any additional documents (eg a BASIX certificate for the amended development) are required to support the amended application and, if so whether those documents have been, or are to be, obtained; (g) discloses the applicant's position on any additional costs that the consent authority may incur as a consequence of the amendment; and (h) identifies the potential impacts on the hearing dates and the applicant's position on the adjustments to the timetable that would enable the hearing dates to be maintained if possible. If practicable, the affidavit should not exceed 3 pages in length (excluding annexures). 40. Leave will usually not be given to amendments where to do so would require either the vacation of the final hearing (for applications to amend made prior to a hearing which has been fixed) or the adjournment of the final hearing (for applications to amend made during the final hearing). An alternative course that should be considered by an applicant is for the residential development the subject of the application to be amended by means of conditions of development consent or approval if the Court considers the grant of such development consent or approval is appropriate. 41. Parties require leave of the Court to amend their statement of facts and contentions. Leave to do so consequential on an amended residential development appeal application may be assumed where leave to amend an application has been granted and will be subject to directions made at that time. In all other cases, leave is to be sought by notice of motion accompanied by a short affidavit in support explaining the reasons for leave being sought. Applications to change hearing dates and for adjournments 42. Residential development appeals will not be adjourned generally. In particular, applicants should usually be ready to proceed with their residential development appeal when it is commenced. This requires applicants to ensure that their residential development appeal application, and the residential development proposed in the application, is considered, complete and final, and suitable for assessment at the final hearing. 43. Proceedings usually will not be adjourned because of failure to comply with this practice note or Court directions or because of lack of preparedness for any attendance before the Court. If failure to comply or lack of preparedness nevertheless does cause the adjournment of the proceedings, the defaulting parties or legal practitioners may be ordered to pay costs. 44. Applications to change hearing dates fixed by the Court are to be by notice of motion, with an affidavit in support explaining the circumstances of the application and the reasons the hearing dates should be changed. Chronology 1. The Class 1 application (the application) was filed with the Court on 30 April 2015 against the deemed refusal of the development application by Council. The application included a set of architectural plans prepared by TW Architects (Revision A, dated 24.2.15). 2. On 21 May, 2015, Leichhardt Council filed and served the Statement of Facts and Contentions, which, in summary, raised the following contentions: * Loss of views of the Parramatta River and Spectacle Island across the site, from private properties and the public domain; * Prohibited development in the foreshore area; * Impact on four trees on the site; * Visual bulk and overshadowing; * Inappropriate response to Council's upgrade requirements for the level of the footpath; * Inadequate provision for disposal of stormwater and access to parking; and * Impact on the Balmain Heritage Conservation Area. 1. Revision B is noted on later revisions of the set of architectural plans as 'additional information included' and dated 10.6.15. 2. The joint reports of the experts, both planning and heritage, were based on either the Revision A or B plans. The planning experts met on site on 1 July 2015 (Expert Joint Report filed 7 July 2015 par 1.4) and their Joint Report is dated 6 July 2015. 3. The set of architectural plans presented by the applicant at the conciliation conference on 8 July, 2015 were the Revision C proposal, dated 29.6.15. 4. Following the adjournment of the conciliation conference, the applicant provided Council with a set of architectural plans that had been further amended following the conciliation conference (Revision D plans, dated 15.7.15) on 15 July 2015. 5. On 16 July, 2015, the applicant engaged Douglas Partners Pty Ltd to carry out on-site investigations and prepare a geotechnical assessment report. On 21 July, 2015, Douglas Partners provided advice that the proposal required a greater setback from Phoebe Street in order to significantly reduce the risk of damage to the Council's asset and to avoid the requirement for any anchoring system (Affidavit of Graham McKee dated 27.7.15 pars 8 -9). 6. The plans that are the subject of the Notice of Motion are the Revision E proposal, dated 23.7.15. Council's submissions 1. It is the Council's submission that the Revision E proposal does not come about as a result of any issues raised by Council or the objectors, but has instead, 'sprung from the applicant, unsolicited'. It is the Council's view that the new proposal constitutes an original development application and, as such, the Court cannot deal with the Revision E proposal. 2. The Council submits that neither the Revision D nor E proposals satisfactorily address the Council's contentions and that the Revision E proposal raises new contentions, which are, in summary, as follows: * The proposed guest bedroom was located within the existing dwelling in the Revision A application and is part of a new addition to the existing dwelling in the Revision E proposal. The proposed addition in the Revision E proposal impacts upon the existing exposed rock face in the front yard; * The Revision A application retained the existing single car garage and the Revision E proposal includes the demolition of the existing garage and the construction of a new double carport. The double carport will impact upon views across the site to the Parramatta River and will result in additional bulk and visual intrusion; * The cabana is repositioned in the Revision E proposal and in its new position it may have a detrimental impact on views from the adjoining property to the north-east; * The design of any works in the vicinity of the road reserve are to be supported by geotechnical and structural engineering reports and are to be designed to accommodate the future raising of the adjacent footpath in Phoebe Street. The necessary raising of the proposed carport slab could be addressed by condition; * The double carport will result in the loss of an on-street car parking space; * A stormwater management plan is required to address the issues of if the property is to drain to the harbour, the applicant must provide written agreement to an easement over the downstream property and it must be demonstrated that an overland flowpath can be provided from the central courtyard to the rear of the property; * A Geotechnical Report is required to demonstrate that the demolition of the existing garage and construction of a double carport and addition to the existing dwelling adjacent to the excavated rock of the Council's roadway is achievable; * The Revision E proposal shows five trees to be removed and two to be retained, however, it is uncertain as to whether the proposed works will permit the retention of the two trees and no Arboricultural report has been provided. 1. The Council submits that the question of whether leave should be granted for the applicant to rely on the Revision E proposal is a matter of fact and degree and is not simply a matter of comparing the Revision A application with the Revision E proposal. Quoting Lloyd J, in Waite v Blacktown City Council [2004] NSWLEC 157 [25]-[26], the Council submits that no assessment of the Revision E proposal has been undertaken and the public are not aware of it: 25. Even if the development application as amended was for lawful uses and the amendments did not amount to a fresh application, the Court nevertheless retains a discretion as to whether to admit the amended plans. 26. In the present case I would exercise the Court's discretion in favour of the council. Considerations of fairness and public involvement suggest that the council should in the first instance have the opportunity of considering the amended application, following the same kind of public notification process that preceded the assessment of the original development application. The adjoining landowners, in particular, may wish to make submissions on the impact upon them of the development now proposed. 1. The Council further submits that any undertaking by the applicant as to costs is not a panacea to the prejudice suffered by the Council as a result of the very late amendment of the application (Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 [99]). The applicant's submissions 1. The applicant submits that the Revision E proposal are an amendment of the application and respond to the Council's contentions. The applicant contends that if the plans attached to the Notice of Motion are substituted for the application, it will facilitate the 'just, quick and cheap' resolution of the issues. Jurisdiction 1. The first question is whether there is power to grant the amendment to the proposal. The Council submits there is not, as the Revision E plans amount to a fresh application and the applicant submits that the Revision E plans are an amendment of the application, in response to Council's contentions. The legal principles relevant to an application to amend plans were analysed by Biscoe J in Hakim v Canada Bay Council [2006] NSWLEC 746 and His Honour concluded at [7] that the principles suggest a liberal application of the amendment power in cl 55 of the Regulation. 2. A schedule of changes itemising the amendments made at each revision of the set of architectural plans is attached to the Notice of Motion. In summary, the changes made by the Revision E proposal to the Revision A application are as follows: * The new pavilion on the south-western side of the existing house is changed from two storeys to one storey; * The roof of the pavilion is changed to a saw-tooth roof; * The garage is retained in the Revision A application and demolished in the Revision E proposal; * The Revision E proposal adds a double carport at the street level and new accommodation beneath the double carport at the same FFL of the single storey pavilion addition; * The proposed ground floor north-western terrace is reduced in size in the Revision E proposal; * The Revision E proposal adds a two storey addition to the existing dwelling, in the area of the site between the existing dwelling and Phoebe Street; * The Revision E proposal locates the entry to the proposal at the ground floor level, accessed via an external stair from Phoebe Street; * The existing internal stair in the existing dwelling is removed in the Revision A application and retained in the Revision E proposal; and * The pool equipment storage area in the Revision A application is moved to under the pool deck and the cabana bathroom is relocated in the Revision E proposal. 1. I accept that the Revision E proposal is arguably within the ambit of cl 55 of the Regulation given the broad approach taken to the both the scope and application of the of the amendment power in the decided cases. Whether to admit the amended proposal 1. The second question is whether it is appropriate to exercise the Court's discretion to grant the applicant leave to amend the application. 2. The evidence is that the joint conference of the planning experts took place on-site on 1 July 2015 and their joint report is dated 6 July 2015. All substantive matters in regard to the Council's contentions regarding loss of public views, loss of private views, prohibited development in the foreshore area and visual bulk and overshadowing are agreed by the planning experts in favour of the Council's position. Having agreed on the issues, the planners' joint report fails to recommend modifications of the proposal, which is inconsistent with the experts' obligation under the Court's policy, 'Conference of Expert Witnesses' at 5. Objectives of joint conferences, 'in planning appeals, to provide the opportunity to explore alternative solutions to issues'. The Court's Practice Note at par 38 requires the applicant to apply for leave to amend its application as soon as reasonably possible and usually no later than 3 working days after the circumstances which prompted the applicant to seek to amend the proposal. The late timing of the planners' joint report made it impossible for the applicant to adequately comply with this requirement with a resolved, fully considered and final proposal, that responded to the planners' agreement on the issues, in time for the commencement of the hearing on 8 July, 2015. 3. The Revision C proposal was presented at the conciliation on 8 July 2015, not having been served on the Council. Following the adjournment of the conciliation conference, the Revision C proposal was shown to be not practicable by the untimely provision of the Douglas Partners geotechnical assessment report on 21 July, 2015, which then generated yet another attempt by the applicant at a suitable proposal that responded to this site constraint. This demonstrated that the applicant was not ready to proceed with its residential development appeal when the hearing commenced on 8 July 2015. 4. I accept the Council's submission that the Revision E proposal in some respects goes beyond simply addressing the contentions raised and constitutes an architectural response to a somewhat new and different brief that raises new issues. The Revision E proposal cannot be described as necessarily resulting in lesser environmental impacts when compared to the application. The difficulty is that the Revision E proposal has not been assessed by the Council or by the experts and it has not been notified to the resident objectors. I would not exercise my discretion to make the orders sought given the timing of the application, as it would require another vacation of the hearing dates to allow for the Revision E proposal to be properly assessed and notified. Furthermore, I am not satisfied that the Revision E proposal is in a complete and final state and suitable for assessment at the hearing. 5. The mismanagement of the timing of the milestones necessary to achieve a complete and final residential development proposal for the hearing dates has made a mockery of the Court's requirements as set out in the Court's Practice Note. Having regard to the wider objects of the administration of justice, it is entirely inappropriate to substitute the Revision E proposal for the application, because it is not in the interest of a just resolution of the proceedings. Accordingly, the Court Orders are as follows: Orders 1. The Applicant's Notice of Motion dated 28 July 2015 seeking leave to amend the application is dismissed. ­­­­­­____________ Susan O'Neill 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: 06 August 2015