Reported Decision: 135LGERA 85
Land and Environment Court
of New South Wales
CITATION: Elali v Campbelltown City Council [2004] NSWLEC 554 PARTIES: APPLICANT:
RESPONDENT:
Elali
Campbelltown City CouncilFILE 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 303DATES OF HEARING: 24/09/2004 DATE OF JUDGMENT: 09/30/2004 LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
Mr J Johnson, Barrister
SOLICITORS
Woolf and Associates
Mrs P Hudson, Solicitor
SOLICITORS
Marsdens
JUDGMENT:
16
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BIGNOLD J
30 September 2004
JUDGMENT10818 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:
- 55 What is the procedure for amending a development application?
(1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined.
(2) If an amendment or variation…
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- Case
- [2004] NSWLEC 554
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