Elali v Campbelltown City Council - [2004] NSWLEC 554

Reported Decision: 135LGERA 85

Land and Environment Court

of New South Wales

CITATION: Elali v Campbelltown City Council [2004] NSWLEC 554

PARTIES:
APPLICANT:
Elali
RESPONDENT:
Campbelltown City Council

FILE NUMBER(S): 10818 of 2004

CORAM: Bignold J

KEY ISSUES: Development Application :- amendment of development proposal-whether Court has power to allow amendment

LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000, cl 55
Land and Environment Court Act 1979, s 39(2)

CASES CITED: Dyldam Developments Pty Ltd v Holroyd City Council [2001] NSWLEC 204;
Ervin Mahrer and Partners v Strathfield Council (No 2) (2001) 115 LGERA 259;
Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303

DATES OF HEARING: 24/09/2004

DATE OF JUDGMENT: 09/30/2004

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Johnson, Barrister
SOLICITORS
Woolf and Associates
RESPONDENT:
Mrs P Hudson, Solicitor
SOLICITORS
Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

30 September 2004

10818 of 2004 GHAZI ELALI v CAMPBELLTOWN CITY COUNCIL

1 The Applicant in a pending class 1 proceeding, being an appeal pursuant to the Environment Planning and Assessment Act 1979, s 97, (the EP&A Act) against the deemed refusal of a development application to develop land known as No 183 Airds Road, Leumeah for the purposes of serviced apartments and a convention centre, by Notice of Motion filed 16 September 2004 seeks an order approving the amendments of the proposed development as shown in a series of drawings specified in the Motion.

2 The Council opposes the Motion and submits that the amendments involve substantial differences to the original proposed development which render it a different or new development application, rather than an amended application.

3 Although the amendments which involve a considerable reduction in the scale of the proposed development reflect the Applicant’s positive response to the Council’s criticisms of the original proposal as reflected in the Council’s filed Statement of Issues, the end result in the Council’s submission is that the Applicant must lodge with the Council a new development application reflecting the amended proposal if it wishes to proceed with that proposal rather than the original proposal.

4 The only evidence tendered on the Motion was the development application plans depicting the original proposal and the amended plans accompanied by a written particulars describing the amendments and the nature of the changed development. Those written particulars are required by the Environmental Planning and Assessment Regulation 2000, cl 55(2) (the EP&A Regulation) to accompany any amendment of the development application which “results in a change to the proposed development”.

5 The Applicant’s claim for the Order sought in his Notice of Motion is exclusively founded upon the provisions of the EP&A Regulation, cl 55 which provide as follows:

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: [2004] NSWLEC 554
Decision Date: 09/30/2004

CaseChat Overview and Summary

The case of Elali v Campbelltown City Council involved an applicant seeking to amend a development proposal for a serviced apartment and convention centre. The applicant sought to amend the proposal in light of criticisms from the council, but the council opposed the amendments, arguing they were substantial enough to constitute a new development application rather than an amendment of the original proposal. The applicant argued that the court had the power to approve the amendments under the Environmental Planning and Assessment Regulation 2000. The court considered the proper construction of the regulation and concluded that the amendments fell within the power conferred by the regulation, permitting the court to approve the amendments. The court stood over the question of whether the power should be exercised in favour of the applicant, giving the council an opportunity to raise any discretionary matters.

Orders