Avard v Clarence Valley Council

Land and Environment Court

of New South Wales

CITATION:	Avard v Clarence Valley Council [2006] NSWLEC 767
PARTIES:	APPLICANT Gavin Avard RESPONDENT Clarence Valley Council
FILE NUMBER(S):	10863 of 2006
CORAM:	Pain J
KEY ISSUES:	Development Application :- whether amendment to development application ought be allowed
LEGISLATION CITED:	Environmental Planning and Assessment Regulation 2000 Sch 3, cl 14, cl 47, cl 55 Land and Environment Court Act 1979 s 39
CASES CITED:	Ebsworth v Sutherland Shire Council [2005] NSWLEC 603; Ervin Mahrer v Strathfield Council (No 2) (2001) 115 LGERA 259 ; Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292
DATES OF HEARING:	05/12/2006
DATE OF JUDGMENT:	12/06/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr N Eastman SOLICITOR Clarissa Heugill & Associates RESPONDENT Mr J Maston SOLICITOR Pickering Priestley

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

6 December 2006

10863 of 2006 Gavin Avard v Clarence Valley Council

JUDGMENT

1 Her Honour: These are Class 1 proceedings appealing against the refusal by the Council of a concrete batching plant. This is a Notice of Motion dated 13 November 2006 seeking an amendment of a description in a development application (“DA”) as follows:

1. By amending the development site to that shown delineated in the survey of Steve Brailsford dated 4 September 2006 and that the survey be incorporated as part of the development application documentation.

2. By amending the Development Application so that the third last paragraph on page 2 of the document headed “Additional Information for CVC DA No. 2005/5490” reads as follows:
The annual production rate of the plant will be no more than 30,000 tonnes per year of concrete or concrete products. Production is expected to generate an average of 20 truck movements daily between 6am and 5.30pm, excluding Sundays.

2 It is agreed that the Court has power to amend the application by virtue of cl 55 of the Environmental Planning and Assessment Regulation 2000 (“the Regulation”) and s 39 of the Land and Environment Court Act 1979 (“the Court Act”). Numerous cases have considered the issue of when it is appropriate to allow the amendment of a development application such as Ervin Mahrer v Strathfield Council (No 2) (2001) 115 LGERA 259, Ebsworth v Sutherland Shire Council [2005] NSWLEC 603, and most recently Jagot J in Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292 where her Honour held at [16] that:

I prefer to ask whether the development now proposed is an amendment or variation of the application, recognising that an amendment or variation may result in change to the proposed development, but that the Court has no jurisdiction to entertain an original application.

3 The Applicant argued that he was seeking to clarify his DA by clearly identifying the area where the proposed development would take place and the amount of concrete intended to be produced to make clear that the application was not one for designated development in light…