Land and Environment Court New South Wales Medium Neutral Citation: Gregory v Central Coast Council [2016] NSWLEC 1481 Hearing dates: 18 October 2016 Date of orders: 20 October 2016 Decision date: 20 October 2016 Jurisdiction: Class 1 Before: Registrar Gray Decision: (1) The Notice of Motion filed by the Applicant on 11 October 2016 is dismissed; (2) The applicants pay the respondent's costs of the Notice of Motion filed 11 October 2016 as agreed or assessed, unless the one or both of the parties seek to exercise liberty to restore the question of costs to the list, which is granted on 3 days notice, within 14 days of the date of these orders. Catchwords: Application for leave to amend modification application; Power to amend modification application; Question of reference point for determining whether it is a new application; Proposed amendment constitutes new modification application Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000 Land and Environment Court Act 1979 Cases Cited: Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245 Mirvac Projects Pty Ltd v Ku-ring-gai Council [2007] NSWLEC 540 Category: Procedural and other rulings Parties: Kevin Gregory (First Applicant) Patricia Gregory (Second Applicant) Central Coast Council (Respondent) Representation: Solicitors: Mr Whealy, Mills Oakley (Applicants) Mr Ball, Central Coast Council (Respondent) File Number(s): 2016/00149967 Judgment 1. This matter comes before me by way of Notice of Motion filed by the applicants on 11 October 2016 seeking leave to amend the modification application the subject of the present proceedings. The Notice of Motion is supported by the affidavit of Ms Orbell affirmed 11 October 2016. The respondent opposes the application. 2. The history of the proceedings is as follows. Development consent was granted on 24 September 2014 to the applicants for the construction of a boarding house. The original development application lodged with the Council in December 2013 sought consent for a four story boarding house comprising 101 boarding rooms. Throughout the assessment process, discussions between the Council and the applicants resulted in the applicants amending the development application to reduce the number of boarding rooms to 94. The council staff recommended the development application be approved and the application was referred to the JRPP for consideration at a meeting on 21 August 2014. At that meeting the JRPP invited the applicants to amend their application, or to confer with council officers to amend their application, to delete the fourth storey. The applicants subsequently amended the development application to remove the fourth storey and replace it with a western wing at ground level adjacent to the now three storey boarding house. Development consent was then granted subject to a deferred commencement condition requiring the deletion of that western wing. 3. The application the subject of the present appeal was lodged with the Council on 7 December 2015 pursuant to s 96(2) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). It sought, inter alia, to remove the deferred commencement condition that required the deletion of the western wing. That is, the applicant sought, through the modification application that is now the subject of these proceedings, to reinstate the western wing. The application also sought to delete or amend a number of other of the conditions of consent, including conditions relating to the provision of a revised operational plan, the payment of contributions, the provision of a revised Plan of Management, the type of fencing to be used, the restriction of visiting hours and the restriction of hours of usage of open space. The deemed refusal period for the modification application expired and the applicant subsequently lodged an appeal to the Court pursuant to s 97AA of the EP&A Act on 9 February 2016. The modification application has since been the subject of discussions between the parties at a conciliation conference. 4. The amended modification application that is proposed by the Notice of Motion changes the modification application such that the applicants no longer seek the reinstatement of the western wing but now seek to add a fourth storey to the main building of the boarding house. The orders sought in the Notice of Motion include orders granting leave to the applicants to rely on an Amended Statement of Environmental Effects, an Arboricultural Impact Assessment, a landscape design report, a plan of management, amended plans and a revised survey. These documents contain the details of a proposal for a four storey boarding house without a western wing. 5. The respondent opposes leave being granted to the applicants on the basis that the extent of the change being made to the modification application renders it a new modification application. Relevant principles 1. The parties agree that the Court has the power to amend a modification application. Such power arises from s 96(1) of the EP&A Act as determined by Talbot J in Mirvac Projects Pty Ltd v Ku-ring-gai Council [2007] NSWLEC 540 and more recently by Craig J in Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245, where the Court held in both cases that a "power to apply must ordinarily include a power to amend." In Jaimee, Craig J further found that the Court has the power to allow an amendment by virtue of s 39(2) of the Land and Environment Court Act 1979, since the Court in the appeal has all the functions and discretions of the consent authority. 2. In discussing the extent of that power, Craig J states (at [38]) "Provided the amendment sought does not convert the original application into a new application, I do not perceive that allowing an amendment would be inconsistent with the purpose of the Act as it addresses the modification of development consent." In distinguishing this power from that given through clause 55 of the Environmental Planning and Assessment Regulations 2000 ("the regulations") for the amendment of a development application, Craig J says (at [39]) "In that sense, the requirement for agreement [in clause 55] was a constraint. In the absence of such an expressed constraint, an applicant would be entitled to amend provided always that the amendment did not effect change so as to transform that which was originally proposed into a new application. By contrast, the discussion of principle whereby the power is described as "beneficial and facultative" informs the ambit of permissible amendment to which agreement can lawfully be given." 1. It is clear, therefore, that the question of whether the Court has power to grant leave to the applicants to rely on an amended application can be determined by considering the nature and scope of the amendment sought and whether that amendment transforms that which was originally proposed into a new application. 2. Once it is established that there is power to allow the amendment to the modification, the Court must determine whether it is appropriate in the circumstances to exercise its power to allow the amendment. Submissions 1. The applicants submit that the Court has power to grant leave to amend the modification application on the basis that the development remains the same as the one originally proposed. The applicants submit that in considering the characterisation of the overall concept, the amendment to the modification application retains that characterisation. 2. The applicants rely on Ebsworth v Sutherland Shire Council [2005] NSWLEC 603, in which Talbot J determines that the relevant consideration is whether the application is (at [35]) "the same as the one originally proposed in the context of the characterisation of the overall concept and the surrounding circumstances of the development application." Whilst the comments by Talbot J relate to an application to amend a development application, the applicants submit that the same consideration applies in the current context and that I ought to have regard to the history of the proposal in considering the "surrounding circumstances of the development application." That history includes the previous amendment of the development application to remove the fourth storey and replace it with a Western Wing prior to the grant of consent. 3. In particular, the applicants submit that leave ought to be granted in circumstances where the present amendment sought is simply a reversal of the amendment made throughout the development assessment process. The applicants say that in considering the surrounding circumstances of the development application, consistent with Talbot J's approach, it is relevant that the Council considered that an amendment to the development application to remove the fourth storey was within the power under cl 55 of the regulations. The applicants submit that if such an amendment was within the Council's power, then the reverse of that amendment is also within the Court's power. Further, the applicants submit that given that the earlier amendment was made throughout the assessment process, a reversal of that amendment cannot be considered a new application. 4. If the Court does have power to grant leave to amend the modification application, the applicants submit that the Court should exercise its discretion to grant leave in circumstances where the amendment to the application reduces the issues in contention between the parties. In particular, the applicants submit that issues such as landscaping, solar access, and visual and acoustic privacy, will be largely resolved by the proposed change to the application. 5. On the other hand, the respondent submits that the amendment converts the s 96 modification to a new s 96 modification application. The respondent submits that in circumstances where the substance of the modification application was to re-instate the western wing otherwise removed by a condition of consent, the proposal to add a new level to the boarding house and to remove the western wing means that the modification application is entirely different to that modification application that was originally made. 6. If I grant leave to the applicants to amend the modification application, the parties have agreed to an order for the applicants to pay the respondent's costs thrown away by the amended modification application, and have agreed that the hearing dates and timetable can nonetheless be retained. Conclusion 1. The assumption that the applicant makes, in submitting that the amendment to the modification application does not change the development, is that the context or point of reference for determining whether the modification application is so changed as to render it a new application is the development itself. 2. I do not accept that this is correct. Rather, the question for my consideration is whether the proposed amendment changes the modification application so significantly as to render the modification application a new modification application. If it does, it is outside the scope of the power to grant leave to amend the application. In so considering, I must consider the nature and extent of the change that is sought to be made in the context of the original modification application. The substance of the original modification application is for the removal and amendment of a number of conditions, the most significant of which is the removal of the deferred commencement condition requiring the deletion of the western wing. The proposed amendment to the modification application removes the application to delete that condition, and seeks to change the modification application to seek the construction of a fourth storey of the boarding house. In the context of the original modification application, this change renders the application a new modification application. As such, I cannot accept that the amendment sought is within the scope of the Court's power. 3. The fact that the respondent had, in the process of assessing the development application, allowed an amendment to a development application to remove the fourth storey is not relevant to my consideration of whether the presently sought amendment to reinstate the fourth storey component of the development is within the scope of the Court's power to grant leave to amend the modification application. The fact of the exercise of the Council's power to grant leave to the applicant to amend the development application can have little weight in whether the Court should grant leave to modify the present modification application. Further, there is a distinction between the two amendment applications. Whereas the amendment before the Council was made in the context of a development application, the present proposed amendment is made in the context of a modification application. 4. I should note that the question for determination would have been different if the appeal was lodged under s97(1) of the EP&A Act following the imposition of conditions on the grant of development consent. In such an appeal, the entire determination of the respondent on the development application is the subject of the appeal. Any proposed amendment to that development application would be considered in the context of the development application itself. However this is not the present consideration. 5. I have considered that, in light of the nature and extent of the amendment sought in the context of the original modification application, the orders sought in the Notice of Motion are outside the scope of the Court's power to grant leave in that the purported amendments constitute a new modification application. As such, the Notice of Motion must be dismissed. 6. The respondent did not indicate any intention to seek an order for costs of the Notice of Motion in the event that the Notice of Motion was dismissed. However, I am of the view that where the applicants unsuccessfully sought to amend a modification application, it is fair and reasonable that the costs of the Council in defending the Notice of Motion be reimbursed by the applicants. In the event that the applicants wish to make submissions on the appropriate costs order to be made, I will allow 14 days in which the parties can exercise liberty to restore in relation to the issue of costs. 7. The Court makes the following orders: 1. The Notice of Motion filed by the Applicant on 11 October 2016 is dismissed; 2. The applicants pay the respondent's costs of the Notice of Motion filed 11 October 2016 as agreed or assessed, unless the one or both of the parties seek to exercise liberty to restore the question of costs to the list, which is granted on 3 days notice, within 14 days of the date of these orders. Joanne Gray Registrar ********** 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: 20 October 2016