Land and Environment Court New South Wales Medium Neutral Citation: Samcourt Pty Ltd v Inner West Council [2017] NSWLEC 1691 Hearing dates: 1 December 2017 Date of orders: 04 December 2017 Decision date: 04 December 2017 Jurisdiction: Class 1 Before: Froh R Decision: The Court orders: 1. Notice of Motion is dismissed Catchwords: AMENDED PLANS – whether leave should be granted – whether amendment has resulted in a new development Legislation Cited: Environmental Planning and Assessment Regulation 2000, cl 55 Cases Cited: Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155 Hakim v Canada Bay City Council [2006] NSWLEC 746 Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 Category: Principal judgment Parties: Samcourt Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: Turvey To (Applicant) Solicitors: Marc Jaku (Applicant) Mark Bonanno (Respondent) File Number(s): 2017/00126074 Publication restriction: No Judgment 1. This matter comes before me on a Notice of Motion filed by the applicant on 27 November 2017. That Notice of Motion is supported by the affidavit of Mr Jaku affirmed on 27 November 2017. 2. The Notice of Motion seeks to rely on amended plans proposing to raise the overall height of the development by up to 75cm and change the proportion of commercial and residential use across the site. 3. The Applicant submits that these amendments are responsive to the expert reports filed by the parties' engineers and town planners, respectively. 4. The amendment proposed to the overall height of the building is uncontroversial. 5. However, the respondent does not agree with the applicant's submissions and submits that the amendment to the proportion of commercial units to residential units is so great that the change constitutes a new development application. 6. The amendment proposed by the Applicant would see that development change from 14 commercial units and 17 residential units across the site to 22 commercial units and 10 residential units across the site. This amendment equates to increasing the amount of commercial space across the development from approximately 22.5% commercial use to approximately 60.4% commercial use. Consideration 1. In considering whether to grant leave for amended plans, Jagot J in Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155, framed two questions for the Court's consideration. 2. The first question is whether the power under cl 55 of the Environmental Planning and Assessment Regulation 2000 is available. In asking this question, Jagot J says, at [16]: "I prefer to ask whether the development now proposed is an amendment or variation of the application recognising that amendment or variation may result in a change to the proposed development, but the Court has no jurisdiction to entertain an original application." 3. The second question for consideration outlined by Jagot J is whether, if the Court does have the power under cl 55, that power should be exercised. 4. Biscoe J in Hakim v Canada Bay City Council [2006] NSWLEC 746 found that a liberal approach is to be taken when considering whether to allow amended plans. As such, the question as to whether the Applicant's proposed amendments render the development application a new application depends largely on the characterisation of the original development application and how that compares to the proposed amendment. 5. The development is described in the Applicant's development application lodged with the Respondent on 5 December 2016 as "Torrens title subdivision of the subject site into 16 torrens title lots and the erection of 16 shop top houses above basement car parking". 6. On 22 September 2017, the Applicant was granted leave to amend its plans to provide shop top housing comprised of 14 ground floor commercial units and 17 residential units. 7. I accept that it is correct to characterise the original development application and its subsequent amendment as shop top housing. With regards to the amendment that comes before me now, of the 14 ground floor commercial units, only 8 of the ground floor commercial units would have the original shop top housing that was proposed. Of the six remaining ground floor commercial units, the units above 5 of those commercial units would be comprised solely of commercial space, whilst the sixth remaining ground floor commercial unit would have a mix of both commercial and residential units above. 8. In the case of Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 Bignold J said in considering a s.96 modification application, that: "The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts". 9. As such, it is my view that the increase in the commercial space from 22.5% to 60.4% changes the development from a shop top housing development to a largely commercial development. I am satisfied that, the amendment is correctly characterised as a new development application and, accordingly, the Notice of Motion should be dismissed. Orders 1. The Notice of Motion is dismissed. Sarah Froh 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: 04 December 2017