Castle Construction v North Sydney Council (No 2) - [2006] NSWLEC 124

Land and Environment Court

of New South Wales

CITATION: Castle Construction v North Sydney Council (No 2) [2006] NSWLEC 124

PARTIES:
Applicant:
Castle Constructions Pty Ltd
Respondent:
North Sydney Council

FILE NUMBER(S): 11010 of 2005

CORAM: Roseth SC

KEY ISSUES: Development Application :- leave to rely on amended proposal

LEGISLATION CITED: s 55 of Environmental Planning and Assessment Regulation 2000 (NSW)

CASES CITED: Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 at [40];
Radray Constructions v Hornsby Shire Council (145 LGRA 292-299

DATES OF HEARING: 30/08/2006

DATE OF JUDGMENT:
09/01/2006

LEGAL REPRESENTATIVES: Applicant:
Mr T Robertson, SC
Respondent:
Ms D Townsend, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

11010 of 2005 Castle Constructions Pty Ltd v North Sydney Council (No 2)

Decision on application to rely on amended drawings

1 Senior Commissioner: This is an appeal against the refusal by North Sydney Council (the council) of a development application to demolish the existing buildings and erect a 31-storey commercial/residential building consisting of basement parking, a podium of five commercial floors and a tower of 26 residential floors. I heard the merit appeal in December 2005 and gave judgment on 12 January 2006 (NSWL:EC 5), dismissing the application. The applicant appealed against my judgment under s56A of the Land and Environment Court Act 1979. Talbot J heard the s56A appeal on 20 and 21 June 2006 and gave judgment on 3 August 2006 (NSLEC 468), setting aside my orders and remitting the matter to a commissioner. The Chief Judge has remitted the matter to me.

2 At a mention on 30 August 2006 the parties appeared before me in order to determine the further course of the appeal. The council’s position is that the matter should be determined on the basis of Talbot J’s judgment on the same application that was before me during the merit hearing. The applicant seeks leave to amend the application. In the applicant’s submission the matter should be determined on the findings of the Talbot judgment, but as they relate to the amended proposal. The question for my determination is whether granting leave to rely on an amended proposal is appropriate in the circumstances of this case.

3 In response to my enquiry during the mention, neither advocate, Mr T Robertson or Ms D Townsend, was able to cite a case in which an applicant changed its proposal after the determination of the merit hearing and the s56A judgment. After spending eleven years with the Court, I am also not aware of such an event. This does not mean that amending a proposal has never been allowed after a successful s56 appeal, but the fact that three people experienced in the Court’s affairs have not heard of it makes it unlikely that it ever happened.

4 The affidavit of the applicant’s solicitor, Mr Peter Douglas McLachlan, dated 25 August 2006, sets out the intended changes to the proposal. The major changes are a reduction in height by 32…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWLEC 124
Decision Date: 01/09/2006

CaseChat Overview and Summary

In Castle Construction v North Sydney Council (No 2), Castle Constructions Pty Ltd sought to amend its development application after the original proposal had been dismissed by the Land and Environment Court. The application was to demolish existing buildings and erect a 31-storey commercial/residential building. The council objected to the proposed height and scale of the building. The applicant sought leave to rely on an amended proposal after the original development application was dismissed and an appeal under s 56A of the Land and Environment Court Act 1979 was successful. The legal issues revolved around whether it was appropriate to grant leave to rely on an amended proposal in these circumstances, particularly given that the appeal under s 56A was intended to correct errors of law, not to allow for amendments to the proposal.

The court considered the discretion to grant leave to amend a development application under cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW) and whether such leave should be granted after a s 56A appeal. While the court acknowledged that cl 55 is a beneficial and facultative provision, it held that granting leave in this case was not in the interest of justice. The court noted that the amendment sought was significant and would require a re-opening of the case. However, the court emphasised that the main factors against granting leave were the stage at which the leave was sought and the fact that the applicant had already amended the proposal once. The court concluded that allowing leave to amend a proposal after a s 56A judgment would undermine the purpose of the s 56A appeal, which is to correct errors of law. The court also highlighted that the applicant had already benefited from the facultative nature of cl 55 by amending its proposal before the merit hearing.

The court refused leave for the applicant to rely on amended drawings, stating that if the applicant had lost interest in the original proposal, it should discontinue the appeal and make a new development application for a building that it wanted to build. The court directed that any further evidence be filed and served by 28 September 2006 and that the matter be listed for a one-day hearing before the Senior Commissioner as soon as possible after 9 October 2006.

Orders