NSW Land & Environment Court

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HAWDEN PROPERTY GROUP PTY LIMITED v CANTERBURY CITY COUNCIL No. 10186 of 1994

IN THE LAND AND No.10186 of 1994

ENVIRONMENT COURT Coram: Bannon J

OF NEW SOUTH WALES 10 May 1994

HAWDEN PROPERTY GROUP PTY LIMITED 

Applicant

v 

CANTERBURY CITY COUNCIL 

Respondent

EX TEMPORE JUDGMENT 

This matter concerns a deemed refusal by Canterbury City Council
("the Council") of a development application made by Hawden Property
Group Pty Limited ("the applicant") on 11 January 1994. The
application was to develop a property adjacent to Canterbury
Racecourse by building nine residential unit buildings containing over
100 units, in accordance with plans (Exhibit A) in this preliminary
application.

In the course of discussions with Council officers, modifications of
the plans were proposed and a new set of plans lodged with the
Council (Exhibit B) in this application. A preliminary objection to
the appeal was taken by the Council, which claimed the modified
plans were for a development substantially different fromthe original
development, which has been notified, and advertised earlier in
accordance with s.342ZA of the Local Government Act , 1919. The
parties assure me that s.342ZA is the relevant section,
notwithstanding the repeal of the Local Government Act , 1919,
because of transitional provisions still in operation. I have not
checked, but I assume that is correct. If the Council submission is
correct, it means the application has to be readvertised, notice of
the modified plans exhibited on the land, and adjoining owners
notified in accordance with s.342ZA of the 1919 Act.

No evidence from adjoining owners, or from expert witnesses, has
been placed before the Court. The parties have simply invited me to
examine the two sets of plans, and to note the differences set out
in an affidavit by MrG.Mossemenear, the Council's Deputy Director of
Planning, dated 9 May 1994.

The test of "substantial difference" enunciated by Holland J and
approved by the majority of the Court of Appeal in Parkes
Developments Pty Ltd v Cambridge Credit Corporation Limited and
Another (1974) 33 LGRA 196 at 202 and 203, is in the following
terms:

"'... whether the changes are such that a reasonably minded
potential objector might reasonably entertain objections to the
development of the land by the erection of a building incorporating
the proposed amendments'."

See also the decision of the former Chief Judge, McClelland J, in
I.D.A. Safe Constructions Pty Ltd v Woollahra Municipal Council
(1981) 48 LGRA 62 at 90. Thechanges noted by Mr Mossemenear include
alterations in the footprints of blocks 5, 7 and 8, resiting block
5, the addition or alteration of verandahs to several blocks, and
different roof outlines on a number of the proposed buildings. In a
large development these changes may not appear substantial to the
hypothetical reasonably minded objector, but it is also true that
the proposed changes may have substantial effects of which I am
unaware, for example, on views of the racecourse. While there is no
legal right to a view, (apart from any right conferred by a
restrictive covenant) it is not unreasonable for an adjacent owner
to raise such an objection under s.90(1) of the Environmental
Protection and Assessment Act , 1979. Such a question has certainly
excited controversy in the past, for example, in Victoria Park
Racing and Recreation Grounds Company Limited v Taylor and Others
(1937) 58 CLR 479. The ultimate test of substantial difference no
doubt is the test of the eye of the Judge having listened to the
evidence.

However, in cases involving infringement of a registered design, the
courts are invariably assisted by expert evidence pointing to the
similarities and differences between the design and the alleged
infringement. Indeed, Farwell LJ in Dunlop Rubber Co. Ld. v Golf
Ball Developments Ld. (1931) 48 RPC 268 at 278 said:

"The eye is the eye of the Court, but the Court is entitled to
be assisted and instructed by evidence so that when it applies its
eye to the test, it may have a mind to direct its eye which is
instructed by the proper evidence."

In D. Sebel & Co. Ltd. v National Art Metal Co. Pty Ltd (1965)
10 FLR 224 at 228 and 229 Jacobs J, when he was a Judge of the
Supreme Court, referred to such expertevidence in reaching conclusions
both as to the validity of, and infringement of, a registered
design. In Ancher, Mortlock, Murray & Woolley Pty Ltd and Others v
Hooker Homes Pty Ltd (1971) 2 NSWLR 278 Street J, as he then was,
was provided with such evidence in assessing the question of
infringement of copyright in two dimensional plans of building.

I leave aside the special provisions of the Copyright Act , 1968
concerning infringement of a two dimensional plan by a three
dimensional work discussed by Gibbs CJ in S.W. Hart & Co.
Proprietary Limited v Edwards Hot Water Systems (1985) 159 CLR 466
at 475 and 476, where the Statute makes special provision as to
the test.

Even were I at liberty to approach this matter as a non-expert,
unassisted by expert evidence, the Court in this proceeding has not
been provided with any evidence as to the objections a reasonably
minded potential objector might wish to raise, in order to determine
the matter in accordance with the test propounded by Holland J, and
approved by the Court of Appeal, in Parkes Developments Pty Ltd v
Cambridge Credit Corporation Limited and Another (1974) 33 LGRA 196.

Mr G. Newport, of Counsel for the applicant, may be correct in
saying the changes are not substantial, and do not render the
proposal substantially different. It is generally undesirable to try
one matter as a separate issue unless it is so unarguably clear
that it will save time and expense in the conduct of the case.
CBSProductions Pty Ltd v O'Neil (1985) 1 NSWLR 601 per Kirby P.
This is not such a case. In my opinion, the applicant must either
take its chance and continue with the substance of the case,
relying on its own expert evidence, and on the case it wishes to
present as to the plans being substantially identical, or else it
must decide for itself to readvertise in accordance with s.342ZA of
the Local Government Act , 1919.

The application, in my opinion, must be dismissed and I so order.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 4 PAGES ARE A TRUE
AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF THE
HONOURABLE MR JUSTICE BANNON.

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