Land and Environment Court
New South Wales
Medium Neutral Citation: Blackmore Design Group Pty Limited v Manly Council [2014] NSWLEC 164 Hearing dates: 9 October 2014 Decision date: 14 October 2014 Jurisdiction: Class 1 Before: Biscoe J Decision: (1) The Court answers the preliminary separate question as follows:
The development application seeks consent for "residential accommodation" which cannot be characterised as "shop top housing" and is therefore prohibited on land within Zone B2 Local Centre pursuant to the provisions of the Manly Local Environmental Plan 2013.
(2) Grant leave to the applicant to amend the development application by relying on amended plans A0.01 issue D and A1.02 issue D.
(3) The applicant is to pay the respondent's costs of the applicant's notice of motion for leave to amend filed on 11 September 2014.
(4) The applicant is to pay the respondent's costs that are thrown away as a result of the applicant amending the development application.
(5) The exhibits may be returned.
Catchwords: DEVELOPMENT APPEAL - separate question whether development application seeks consent for "residential accommodation" which cannot be characterised as "shop top housing" and is therefore prohibited on land within Zone B2 Local Centre pursuant to the provisions of Manly Local Environmental Plan 2013 - whether leave should be granted to amend development application to overcome prohibition.
COSTS - of separate question - whether applicant should pay costs of separate question and, if so, whether on ordinary basis or indemnity basis having regard to its conduct and Calderbank principles -applicant to pay costs relating to amendments.Legislation Cited: Environmental Planning and Assessment Act 1979 ss 91A(2), 97B
Water Management Act 2000 s 91(3)
Environmental Planning and Assessment Regulation 2000 cl 55
Land and Environment Court Rules r 3.7
Manly Development Control Plan 2013
Manly Local Environmental Plan 2013 DictionaryCases Cited: Abret v Wingecarribee Shire Council [2011] NSWCA 107, (2011) 180 LGERA 343
AF Concrete Pumping Pty Ltd v Ryan & Ors [2014] NSWCA 346
Al Amanah College Inc v Minister for Education and Training (No 4) [2012] NSWLEC 26
Association for Better Living and Education Inc v Wyong Shire Council [2014] NSWLEC 96
Blackmore Design Group Limited v Manly Council [2014] NSWLEC 151
Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147, (2013) 201 LGERA 116
Calderbank v Calderbank [1975] 3 All ER 333
Chamwell Pty Ltd v Strathfield Municipal Council [2007] NSWLEC 114, (2007) 151 LGERA 400
Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd (No 2) [2012] NSWCA 217
Hanna v Council of the City of Ryde [2010] NSWLEC 1094
Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121
Maule v Liporoni [2002] NSWLEC 25, (2002) 122 LGERA 140
Monaghan v Holroyd City Council [2009] NSWLEC 112, (2009) 167 LGERA 321
Pyntoe Pty Ltd v Valuer-General of NSW (No 2) [2012] NSWLEC 231
Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155, (2006) 145 LGERA 292
Reysson Pty Ltd v Roads…
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- Case
- [2014] NSWLEC 164
- Decision Date
CaseChat Overview and Summary
The court first determined that the development application sought permission for residential accommodation, which could not be classified as "shop top housing" and was therefore not permissible under the relevant zoning provisions. Consequently, the court ruled that the application for consent must be denied. The court then examined the request for leave to amend the development application, allowing the applicant to incorporate updated plans. This was granted, but the applicant was required to bear the costs associated with the notice of motion for leave to amend. Furthermore, the applicant was ordered to pay the respondent's costs that were rendered null and void due to the amendment of the development application.
In conclusion, the court provided a definitive answer on the nature of the proposed development and its compliance with zoning laws. It also permitted the applicant to amend the development application, albeit with financial consequences. The exhibits were to be returned to the applicant. This decision clarifies the parameters of permissible developments within the specified zone and the procedural and financial obligations of the applicant in the event of an amendment to the development application.
Orders
Orders of the court
(1) The Court answers the preliminary separate question as follows:
The development application seeks consent for "residential accommodation" which cannot be characterised as "shop top housing" and is therefore prohibited on land within Zone B2 Local Centre pursuant to the provisions of the Manly Local Environmental Plan 2013.
(2) Grant leave to the applicant to amend the development application by relying on amended plans A0.01 issue D and A1.02 issue D.
(3) The applicant is to pay the respondent's costs of the applicant's notice of motion for leave to amend filed on 11 September 2014.
(4) The applicant is to pay the respondent's costs that are thrown away as a result of the applicant amending the development application.
(5) The exhibits may be returned.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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