Chivers v Hornsby Council

[2007] NSWLEC 765

Land and Environment Court

of New South Wales

CITATION:	Chivers v Hornsby Council [2007] NSWLEC 765
PARTIES:	APPLICANT Les Chivers RESPONDENT Hornsby Council
FILE NUMBER(S):	10419 of 2006
CORAM:	Pain J
KEY ISSUES:	Practice and Procedure :- whether amendment of plans should be allowed
DATES OF HEARING:	13 November 2007
DATE OF JUDGMENT:	16 November 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr C McEwen SC with Mr M Staunton SOLICITOR North Shore Lawyers RESPONDENT Mr P Tomasetti SC SOLICITOR Storey and Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

16 November 2007

10419 of 2007 Chivers v Hornsby Council

JUDGMENT

1 Her Honour: These proceedings are part heard having been stood over from 16 August 2007 to 10 and 11 November 2007. The Applicant has made an application to rely on amended plans. I heard the application at the hearing of 10 November 2007. While I gave “in principle” leave to rely on amended plans on 10 November 2007 there were further changes needed to produce plans with sufficient detail to enable further notification to neighbours. These have now been prepared and I can formally rule on the Applicant’s application to rely on amended plans. The amendments relate to a change in the use of an access track on the property at 9 Canoelands Road, Canoelands. The amendment proposes that an existing track on the western boundary be upgraded for occasional use for vehicles to go to the lower level of the property to undertake checks and necessary repairs on infrastructure on that level.

2 The existing access track in the eastern section of the property previously relied on by the Applicant requires upgrading also and has resulted from the placement of extensive shale fill around several large trees. The amended plan will enable removal of the shale fill from the existing eastern access track and will have a beneficial impact on the trees in this area.

3 The Council does not oppose the application being made apart from seeking its costs thrown away because it had to assess the existing plan. It also argues that the hearing dates of 10 and 11 November 2007 were also effectively thrown away because of the late amendment and its costs of the two hearing days of 10 and 11 November 2007 should also be met by the Applicant. I note that only one day, 10 November 2007, was utilised for the hearing.

4 The Applicant does not oppose a costs order to the effect that the costs of assessing the previous plans should be made in the Council’s favour but opposes having to pay the costs of the hearing on 10 and 11 November 2007. It argues that the hearing time was not thrown away.

5 I consider I should allow the amendment of the plan sought as it is a relatively minor change in the context of this development application. It is also likely to result in less environmental impact than the previous proposal which utilised the eastern access track. I therefore give leave to the Applicant to rely on plan drawing numbers C10-E, C11-E, C12-D now filed in the Court.

6 The Applicant should pay the Council’s costs thrown away in assessing the previous plan as a result of the amended plans being relied upon. I do not consider the hearing date of 10 November 2007 was wasted as there were a number of other matters which required consideration. I consider that Court time was usefully spent in resolving a number of these.

Orders

7 The Court makes the following orders:

1. The Applicant has leave to rely on amended plans C10-E, C11-E and C12-D in these proceedings.

2. The Applicant must pay the Council’s costs of assessment of the previous plans thrown away by the amendment of plans as agreed or assessed.