Citify Pty Ltd v The Corporation of the City of Marion [2021] SAERDC 30 – the Lady Becker principle explored

A recent decision of the Environment, Resources and Development Court (Court) has considered and applied the so-called ‘Lady Becker principle’[1], in determining whether an amended scheme was substantially different as to be properly considered a new proposal warranting a fresh application.

The decision is available to read here.

Facts

The appellant, Citify Pty Ltd (Citify), originally lodged a development application with the council (Council) under the now repealed Development Act 1993 (Development Act) for the construction of two residential flat buildings comprising 11, three-storey dwellings, separated by a central courtyard. The application was refused by the Council.

Citify appealed that decision and, in the process of those proceedings, developed a “compromise scheme”. The Council Assessment Panel declined to consider the compromise scheme on the grounds that it was contrary to the Lady Becker principle.

The compromise scheme consisted of two abutting residential flat buildings comprising 10, two-storey dwellings, with key differences in the dwelling arrangement, garaging arrangements, building setbacks, building design and appearance. It was argued that the new plan was a “complete redrawing” which had little resemblance to the original plan. On the contrary, the subject land, nature of the development, general siting of the buildings, and the site access points were largely unaffected by the changes, and the changes did not result in any procedural differences in the assessment of the compromise scheme.

Lady Becker principle

The Lady Becker principle is well-established. In effect, where there is a fundamental change to, or a change in the essential nature of, a proposal, then that proposal will be properly assessed as a fresh application rather than as a variation to the original application.

Whether a variation of a development proposal is a variation or a conversion to a new proposal is matter of fact and degree. The Lady Becker principle has been applied in various contexts and the key elements can be distilled as follows:

• the assessment must focus on the totality of the changes to the proposal and their impact on the development as a whole;
• there can be a “substantial change” to the original proposal without altering the “essential nature of a proposed development”;
• it may be appropriate for the relevant authority (or a court) to consider certain amendments to proposals in certain circumstances (although the fact that the changes proposed may amount to a better proposal is not a valid consideration if the essential nature has been altered);
• whether the variation results in a procedural change (e.g. public notification) may be of greater weight in determining whether the essential nature has changed rather than building and design elements alone.

Findings

The Court found that, on balance, the essential nature of the proposal had not been changed by the compromise scheme.

In arriving at this view, the Court found that the fact that although elements of the proposal had been changed in order to optimise the chances of securing a planning consent, these did not amount to fundamental changes in the proposal itself. Despite the changes in form and layout, the compromise scheme was still for a series of dwellings comprising two residential flat buildings.

Even the “complete redrawing” of the plan was justifiable and regarded by the Court as an example of “good cartographic practice”[2], which did not of itself signify that the original proposal had been abandoned. There were found to be enough elements that remained either the same or substantially similar to the original proposal that the compromise scheme could be considered the same application in its essential nature.

Important takeaways

Although this case arose under the Development Act, the Lady Becker principle is likely to apply equally under the Planning, Development and Infrastructure Act 2016.

While each case will be determined on its permits, previous cases in which the Lady Becker principle has been considered and applied (or not as the case may be) may assist in determining whether it applies in a given set of circumstances.

This case suggests that the ERD Court is prepared to extend significant flexibility to applicants; even substantial changes in the form and appearance of a development may not necessarily tip the balance in favour of offending the Lady Becker principle if other factors such as the proposed use and procedural matters remain unaffected.

For more specific information on any of the material contained in this article please contact Nicholas Munday on +61 8 8217 1381 or nmunday@normans.com.au.

[1] In reference to the case in which the principle was first espoused, namely, City of Marion v Becker (1973) 6 SASR 13.

[2] Citify Pty Ltd v The Corporation of the City of Marion [2021] SAERDC 30 at [29].