Land and Environment Court New South Wales Medium Neutral Citation: Sydney Tools Pty Ltd v Canterbury-Bankstown Council (No 2) [2019] NSWLEC 6 Hearing dates: 10 December 2018 Date of orders: 04 February 2019 Decision date: 04 February 2019 Jurisdiction: Class 1 Before: Sheahan J Decision: The Notice of Motion is dismissed Catchwords: PRACTICE AND PROCEDURE: Review of the Registrar's decision to allow amendment of a development proposal before the Court. Legislation Cited: Environmental Planning and Assessment Regulation 2000 Uniform Civil Procedure Rules 2005 Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 Bridge Shipping Pty Limited v Grand Shipping SA and Another (1991) 173 CLR 231 Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 Ervin Mahrer and Partners v Strathfield Municipal Council [No 2] (2001) 115 LGERA 259; [2001] NSWLEC 140 Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149 Holmes and Another v Permanent Trustee Company of New South Wales Limited and Others (1932) 47 CLR 113 Leimroth v Wingecarribee Shire Council [2012] NSWLEC 256 Orico Properties Pty Ltd v Inner West Council [2017] NSWLEC 90 Owners – Strata Plan 37762 v Pham [2005] NSWLEC 500 Quakers Hill SPV Pty Limited v Blacktown City Council [2012] NSWLEC 200 Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155; (2006) 145 LGERA 292 Rose Bay Afloat Pty Ltd (Formerly Known As Titanic Floating Restaurant Pty Ltd) v Woollahra Council & Anor. (2002) 126 LGERA 36; [2002] NSWLEC 208 Samcourt Pty Ltd v Inner West Council (No 2) [2017] NSWLEC 169 Sky Design and Concepts Pty Limited v Pittwater Council (No.4) [2009] NSWLEC 129 Sydney Tools Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1625 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Category: Principal judgment Parties: Sydney Tools Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: Mr N Eastman, barrister (Applicant) Mr M Cottom, solicitor (Respondent) Solicitors: Mills Oakley (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2017/371724 Judgment Introduction 1. The Court is asked, pursuant to Rule 49.19 of the Uniform Civil Procedure Rules 2005, to review a decision made by the Registrar, in the management of these Class 1 proceedings, to allow the Applicant company to rely on amended plans. 2. The Applicant appealed, on 7 December 2017, against the Respondent's "actual refusal of development application ([("DA")] no. DA/163/2018 for the use of the premises as a tools hardware and building supplies store and a warehouse and distribution centre at 102 Bonds Road, Riverwood". 3. "On 28 March 2018, the DA was amended to rely on documentation prepared in response to the draft contentions that Council provided" (T21.11.18 p5, LL43-45). That amendment was apparently not controversial. 4. The Applicant's present motion for leave to amend was filed on 12 November 2018, but this one was contested. 5. The Applicant again says (subs par 17): The amendments sought by the Applicant are responsive to the issues raised by Council in its reasons for refusal and contentions filed in the proceedings and resolve a number of issues in dispute. 1. It had submitted to the Registrar (T21.11.18 p20, LL29-32): ... the purpose of reg 55 is to enable the response to those issues, and secondly, to encourage a consent authority, which is now the Court, to solicit a better outcome. That is to say, if there is an issue and you can respond to it through amendment, to allow that outcome to occur. 1. The Council says (letter of 15 November 2018 annexed to its affidavit in support of its motion): ... In our view the changes to the proposed development are so significant that they do not give rise to an amendment or variation to the development application of the nature referred to in clause 55 of the Environmental Planning and Assessment Regulation 2000, but rather constitute a new or fresh application. In particular, without limitation we note the following changes which cumulatively lead to that view: 1. The proposed addition of Unit B into the proposed development. 2. The altered parking and loading zone arrangements designed to facilitate that addition. 3. The proposed internal changes to the basement of Unit C and its change of use to car parking. 4. The significant landscaping works now the subject of landscape plans. 1. The motion was argued, at length, before the Registrar, on 21 November 2018, and she reserved her decision overnight, publishing her judgment, to take effect on 22 November 2018: Sydney Tools Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1625. 2. Primarily the Council complains that the Registrar gave inadequate reasons for her decision, but the Applicant argues that rarely are more fulsome reasons given for granting leave, even if amendment is strongly resisted. (See the Applicant's schedule of cases, filed in Court on 10 December 2018.) 3. The Registrar's judgment, albeit quite brief, was handed down very soon after argument concluded, and has to be considered in the light of the transcript of that one-hour argument. 4. I have studied that transcript closely. Mr Sonter, for the Applicant, went into very great detail in his submissions, and the Registrar actively engaged with him on the substance of his current application (see, e.g., T21.11.18 pp7-10), and on the most relevant authorities (pp10-15). Principles 1. On applications for the review of a decision made by the Registrar, the reviewing judge does not have to find an error of law, but must determine the relevant question afresh. 2. The key authorities are Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369; and the Chief Judge's decision in Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149; but see also, for example, my judgments in Sky Design and Concepts Pty Limited v Pittwater Council (No.4) [2009] NSWLEC 129, at [38]; Quakers Hill SPV Pty Limited v Blacktown City Council [2012] NSWLEC 200, at [26]-[30]; Leimroth v Wingecarribee Shire Council [2012] NSWLEC 256, at [71]-[75]; Samcourt Pty Ltd v Inner West Council (No 2) [2017] NSWLEC 169, and many other decisions referred to in those judgments. 3. Questions arise as to reasonableness of the registrar's decision, and how best to serve the interests of justice in the circumstances of the case. Background 1. The relevant development project has been the subject of "some fairly significant debate between the parties for some time" (Tp2, LL20-21), including related Class 4 proceedings. 2. The site, as developed, comprises three units, "A", "B", and "C", and the disputed amendment seeks to "add" unit "B" into the development application, and make some other changes to it. 3. The Applicant argued before the Registrar that the site description in the DA, and the owner's consent, embraced unit "B" from the outset. As its solicitor said (T21.11.18 p19, LL37-43, p20, LL40-44, and p 21, LL1-3): In my submission, the application, by its own terms, the DA form, the SEE, notwithstanding the reference to part of the lot, relates to the whole of the lot and proposes development on part of it. But, irrespective of that, Mr Cottom accepts that under the ambit of reg 55, you have the power and the ability to expand the development application into an adjoining area of the development site, and that is what this application seeks to do. ... ... there is an expanded footprint of warehouse and distribution facility, ... there are now loading zones in a different place, ... there is a redistribution of parking spaces, ... there is car parking within the basement, and ... the application now has landscape plans. ... The uses remain the same, the impacts remain the same, the land to which the development application relates, in my submission, remains the same. 1. The Council contends that the presently proposed changes to the DA are so significant that they take them beyond the reach of the provisions of cl 55 of the Environmental Planning and Assessment Regulation 2000 ("the Regulation") and constitute a new or fresh application. Before the Registrar, Mr Cottom, for the Council, said (T21.11.18 p3, LL34-35): ... I don't raise any discretionary reasons why the Court should refuse leave in this case. It's really just a cl 55 argument. 1. Clause 55 of the Regulation provides: 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. (3) If the development application is for: (a) development for which concurrence is required, as referred to in section 4.13 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. 1. The Applicant contended before the Registrar, and before me, that its proposed amendment is "within power as the development that is currently before the Court is for a warehousing and distribution centre and the inclusion of Unit B and the other proposed amendments to the development application do not change that" (see Registrar's judgment at [4]). 2. In her decision, the Registrar said (at [5] and [6]): 5 Over the course of the hearing, the parties ultimately put to me that whether the amendment within my power was one of fact and degree. 6 I have relied on the principles set out by her Honour Jagot J when considering cl 55 of the Regulation in Radray Constructions Pty Ltd v Hornsby Shire Council [("Radray")] [2006] NSWLEC 155; (2006) 145 LGERA 292, being that the power to amend a development application is both "beneficial and facultative" and should be afforded "the widest interpretation which its language will permit". 1. Mr Cottom contends (T10.12.18 p3, LL32-38) that when the Registrar said (at [2]) that the Applicant's motion "seeks to amend the development application the subject of the appeal, by (among other things) amending the area of the development site to include an area referred to by both parties as "Unit B"", she was making: ... a finding of fact ... to the effect that the development site prior to this latest amendment did not include unit B. A key contested issue between the parties when the matter was before the registrar was whether the development site, the subject of the class 1 immediately prior to this latest amended, included unit B. 1. He went on to submit that the Applicant (T10.12.18 p3, LL43-44) is: ... endeavouring to go behind the factual findings that the registrar has made in this para 2. 1. I am not satisfied that the Registrar has made (in [2]) a concluded finding on the question of whether Unit B was or was not included in the DA. 2. Mr Cottom conceded that the proposal, if amended, would remain one for a "warehousing and distribution centre", but he complained that that use, as amended, would be "twice as intense" as originally proposed, and would invoke "activities ... done in a completely different way ... especially on traffic engineering grounds" (see generally T10.12.18 p3, L45-p4, L18). 3. He argues that it is not sufficient for the Court to emphasise the unchanged "essence" of the proposal, "without delving into a comparison between the activities on the latest amendment and the prior amendment" (T10.12.18 p5, LL4-7). 4. He submits (T10.12.18 p8, LL17-25): The Sydney Tools DA as proposed to be amended, or should I say the Sydney Tools DA immediately prior to the latest amendment deliberately excluded unit B and the deliberate exclusion of unit B within a number of documents that I'll take your Honour to shortly means that unit B was not part of the development site in the original development application. It was not part of the building footprint, it was not part of the curtilage of unit C, it was deliberately excluded from the development site and now what Sydney Tools is endeavouring to do is bring unit B online and effectively add another almost three and a half square metres worth of floor space in to this proposed development. Consideration 1. It is common ground that the approach taken by Jagot J to cl 55 of the Regulation, in Radray, and consistently adopted in this Court, is correct. 2. Her Honour's approach, articulated in 2006, and its general acceptance ever since, renders earlier leading authorities, such as Ervin Mahrer and Partners v Strathfield Municipal Council [No 2] (2001) 115 LGERA 259; [2001] NSWLEC 140, and Rose Bay Afloat Pty Ltd (Formerly Known As Titanic Floating Restaurant Pty Ltd) v Woollahra Council & Anor. ("Rose Bay")(2002) 126 LGERA 36; [2002] NSWLEC 208, of limited utility. 3. However, I note here that the Court of Appeal recently made an uncritical reference to Rose Bay in Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245, saying (at [94]): If the accompanying documents reveal that part of the proposed development extends to land other than the land whose address and formal particulars of title are shown in the development application form, that other land is also the subject of the development application: see Owners – Strata Plan 37762 v Pham [2005] NSWLEC 500 at [32]. Conversely, the description of the land on which the development is to be carried out in the accompanying documents (such as the statement of environmental effects) can also confine the land to which the development application relates to be a lesser parcel of land than is described in the development application form: see [Rose Bay] at [60]-[63]. 1. I also note the potential relevance here of Bignold J's remarks (at [29] of Rose Bay): The simple, but important point, is that in its context, the expression "land to which a development application relates" embraces the conventional planning concept of "the development site", and that concept is different from the conventional planning concept of "building footprint or site occupation" (although in the case of some development proposals, the two planning concepts can involve precisely the same area of land). 1. Each application for review turns on its own particular facts, and Mr Cottom submits (T10.12.18 p8, LL46-47) that the amendments in Rose Bay "were far less significant" than those in this case. 2. I think that the Court should focus on the ratio of Radray, in which Jagot J said (at [6]-[10]): 6 In Ebsworth v Sutherland Shire Council [[2005] NSWLEC 603] Talbot J summarised the various approaches that have been taken to applications to amend plans. One limit on the power available under cl 55 has been consistently recognised – that the Court has no jurisdiction to entertain an original development application. The criteria used to determine whether an amendment converts an application the subject of appeal into an original application, however, has varied (see, for example, Ebsworth v Sutherland Shire Council at [33]). 7 At [40] in Ebsworth v Sutherland Shire Council, Talbot J observed that: It is my view that Regulation 55 is beneficial and facultative and intended to facilitate the making of amendments on two accounts. Firstly to enable the applicant for consent to respond to any issues identified by the council or objectors and secondly to encourage a consent authority to solicit a better outcome. A broad approach to the application of Regulation 55 is therefore appropriate. 8 I also consider that a broad approach to both the scope and application of cl 55 is appropriate. Clause 55 enables any application to be amended or varied with the agreement of the consent authority at any time prior to determination. An amendment or variation, as cl 55(2) contemplates, may result in change to the proposed development. The extent of change able to be authorised by agreement of the consent authority or by the Court exercising that function on appeal (and which does not result in the conversion of the application into an original application) will depend upon the facts of the particular case (including, for example, the nature of the site and the nature and characteristics of the proposed development). 9 The availability of the power is to be determined having regard to the beneficial and facultative nature of the provision. That is, I consider that cl 55 ought to be construed so as to give "the widest interpretation which its language will permit" (Bridge Shipping Pty Limited v Grand Shipping SA and Another (1991) 173 CLR 231 at 260 – 261 per McHugh J referring to Holmes and Another v Permanent Trustee Company of New South Wales Limited and Others (1932) 47 CLR 113 at 19 per Rich J). 10 The question whether the power should be exercised in a particular case (that is, should the Court, exercising the functions of the consent authority agree to the amendment or variation sought) is also to be answered having regard to the beneficial purpose of the provision. The factors relevant to that question will vary depending upon the circumstances in which the application is made (including, for example, the time at which the application is made and the reasons for making the application). 1. Robson J had reason to consider the Radray approach fairly recently in Orico Properties Pty Ltd v Inner West Council [2017] NSWLEC 90. 2. His Honour, in refusing leave to amend, went beyond relying heavily on the "essence" of the proposal at hand, and, at the same time, avoided "too close scrutiny of quantitative differences" between the unamended proposal and the result of the amendment sought. 3. His Honour went on to conclude (at [29]) that: ... although questions of "essence" may be relevant to the present inquiry, in this matter, as submitted by Council, it is ultimately a question of fact and degree and I accept that in this particular application a "tipping point" has been reached such that the amendment now sought constitutes a new or fresh application. ... 1. As Mr Sonter said to the Registrar, in the context of Robson J's "tipping point" (T21.11.18, p21, L7-10): We're in the fact and degree area, and in my respectful submission, there is nothing that has been identified by council in terms of a change, that is so radical or so substantially different that it would tip this application beyond the power of reg 55 for you to approve the amendment. 1. Mr Eastman, for the Applicant, before me, points out that the subject DA is for use, not for any construction works and that he needs to (more explicitly) include unit "B" because the Applicant now seeks to use it. To that extent, the amendment changes the footprint of the use, but not the appearance of the project (T10.12.18 p19, LL14-45). The loading zone and other parking arrangements are to change, and some storage space will be used for parking. There will be "a slight difference to hours of operation" (T10.12.18 p20, L22), and new landscaping and "forklift travel" plans (LL25-26). 2. The actual changes the Applicant now proposes can be clearly seen when, as requested by Mr Cottom, the Court compares figure 5 in Ms Marginson's material with figure 10 in Mr Sonter's material (T10.12.18 p11, LL36-36). 3. Mr Cottom submits that those changes affecting units "B" and "C" have a significant effect on the use of the site, especially from a traffic perspective. 4. He stopped short of saying that the now proposed landscaping measures were so significant as to engage cl 55, but he submitted that they were "another significant pointer to the tipping point ... having been reached" (T10.12.18 p14, L49 to p15, L12). 5. Mr Cottom says that these changes to the activities within the warehousing and distribution use make it "radically different, especially unit B coming on line and then secondary to that the complete change within the basement of unit C" (T10.12.18 p22, LL35-36). Conclusion 1. The Registrar was not satisfied that she should draw such a conclusion, and neither am I. 2. I find that the Registrar's handling of the matter, including her conclusion, was "reasonable", and that, in the "interests of justice", the amendments should be allowed. 3. I see no basis for intervening in the matter, and the Registrar's decision and orders should be allowed to stand, in anticipation of the hearing of the appeal on 27-28 March 2019. 4. The Respondent Council's Notice of Motion filed 27 November 2018 will be dismissed. 5. As these are Class 1 proceedings, I would expect to make no order as to costs on the Notice of Motion, but there was no argument on that issue so the question of costs will be formally reserved. Orders 1. The Court makes the following orders: 1. The Respondent Council's Notice of Motion filed 27 November 2018 is dismissed. 2. Costs on that Notice of Motion are reserved. ********** 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 February 2019