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Futurespace Pty Ltd v Ku-ring-gai Council

Futurespace Pty Ltd v Ku-ring-gai Council

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Case Copied 7 September 2009 19 min read

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Reported Decision: 169 LGERA 45

Land and Environment Court

of New South Wales

CITATION: Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153

PARTIES: Futurespace Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

FILE NUMBER(S): 10513 of 2009

CORAM: Pepper J

KEY ISSUES: SECTION 97 APPEAL :- application to amend development application in class 1 appeal - leave granted to amend development application - whether amendments "minor" - amendments more than minor - applicant ordered to pay respondent's costs under s97B of the Environmental Planning and Assessment Act

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s97B

CASES CITED: Cachia v Manly Council (No 2) [2009] NSWLEC 1107
Coshott v Woollahra Council [1996] NSWLEC 256
Groeneveld v Wollongong City Council [2009] NSWLEC 149
Groeneveld v Wollongong City Council [2009] NSWLEC 1226

DATES OF HEARING: 7 September 2009

EX TEMPORE JUDGMENT DATE: 7 September 2009

LEGAL REPRESENTATIVES:
J Hones (Applicant)
Hones La Hood Lawyers (Applicant)
J Robson SC (Respondent)
Deacons Lawyers (Respondent)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

7 September 2009

09/10513 Futurespace Pty Ltd v Ku-ring-gai Council
EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: This is a notice of motion seeking leave by the applicant to reply upon the amended plans by Futurespace Pty Ltd, being drawings A000-B; A001-B; A002-B; A100-B; A101-B; A102-B; A103-B; A104-B; A105-B; A200-B; A201-B; A301-B; A400-B; A401-B and the landscape plan prepared by iSpace Landscape Architecture being drawing number 38.09/064 “A” (together, “the amended plans”).

2 The motion is moved upon in the context of a class 1 appeal filed 30 July 2009, against the deemed refusal to grant development consent to an application for the demolition of three existing structures and the construction of a residential flat building with 27 units, basement parking and associated works (“the proposed development”) at Lots 4, 5 and 6 in DP 6353, otherwise known as 7-11 Turramurra Avenue, Turramurra (“the site”).

3 The respondent, Ku-ring-gai Council (“the council”), does not oppose the granting of leave and submits that the amendments are appropriate.

4 The Court agrees, and accordingly, leave is granted to rely upon the amended plans.

5 The issue in this motion is whether the proposed amendments as contained in the amended plans are “minor” for the purpose of s 97B of the Environment and Planning Assessment Act 1979 (“the EPAA”). If they are not, then that provision states that irrespective of the utility and appropriateness of the amendments, the applicant must in effect pay the council’s costs incurred in respect of the assessment of the original development application. Somewhat unusually in respect of an awards of costs the Court has no discretion but to award costs against the applicant if the Court forms the view that the amendments are other than “minor”.

6 It therefore comes as no surprise that the applicant submits that the amendments are minor, whereas the council submits that they are not.

7 Section 97B of the EPAA states as follows (emphasis added):

97B Costs payable…

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: [2009] NSWLEC 153
Decision Date: 7 September 2009

CaseChat Overview and Summary

Futurespace Pty Ltd applied to amend its development application as part of a class 1 appeal against the Ku-ring-gai Council's refusal to grant development consent for a proposed residential flat building. The council did not oppose the granting of leave, but submitted that the amendments were not minor for the purposes of section 97B of the Environmental Planning and Assessment Act 1979. The court found that the amendments were not minor, and that section 97B required the applicant to pay the council's costs. The applicant was granted leave to rely on the amended plans, and ordered to pay the council's costs incurred in respect of the assessment of, and proceedings relating to, the original development application, including the notice of motion. The court's decision was based on the council's unchallenged evidence that the amendments required significant assessment, including compliance with the Ku-ring-gai Local Environmental Plan 194 and the impact of changes to the top floor on the privacy of neighbours. The applicant's contention that the amendments could be the subject of conditions of consent was rejected, as the court found that the applicant could not avoid the consequences of section 97B by contending that the amendments were capable of being the subject of conditions at some future point.

Orders