Gregory v Central Coast Council - [2016] NSWLEC 1481

Land and Environment Court

New South Wales

Medium Neutral Citation: Gregory v Central Coast Council [2016] NSWLEC 1481
Hearing dates: 18 October 2016
Date of orders: 20 October 2016
Decision date: 20 October 2016
Jurisdiction: Class 1
Before: Registrar Gray
Decision:
(1) The Notice of Motion filed by the Applicant on 11 October 2016 is dismissed;
(2) The applicants pay the respondent’s costs of the Notice of Motion filed 11 October 2016 as agreed or assessed, unless the one or both of the parties seek to exercise liberty to restore the question of costs to the list, which is granted on 3 days notice, within 14 days of the date of these orders.

Catchwords: Application for leave to amend modification application; Power to amend modification application; Question of reference point for determining whether it is a new application; Proposed amendment constitutes new modification application
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulations 2000
Land and Environment Court Act 1979
Cases Cited: Ebsworth v Sutherland Shire Council [2005] NSWLEC 603
Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245
Mirvac Projects Pty Ltd v Ku-ring-gai Council [2007] NSWLEC 540
Category: Procedural and other rulings
Parties: Kevin Gregory (First Applicant)
Patricia Gregory (Second Applicant)
Central Coast Council (Respondent)
Representation: Solicitors:
Mr Whealy, Mills Oakley (Applicants)
Mr Ball, Central Coast Council (Respondent)

File Number(s): 2016/00149967

Judgment

This matter comes before me by way of Notice of Motion filed by the applicants on 11 October 2016 seeking leave to amend the modification application the subject of the present proceedings. The Notice of Motion is supported by the affidavit of Ms Orbell affirmed 11 October 2016. The respondent opposes the application.
The history of the proceedings is as follows. Development consent was granted on 24 September 2014 to the applicants for the construction of a boarding house. The original development application lodged with the Council in December 2013 sought consent for a four story boarding house comprising 101 boarding rooms. Throughout the assessment process, discussions between the Council and the applicants resulted in the applicants amending the development application to reduce the number of boarding rooms to 94. The council staff recommended the development application be approved and the application was referred to the JRPP for consideration at a meeting on 21 August 2014. At that meeting the JRPP invited the applicants to amend their application, or to confer with council officers to amend their application, to delete the fourth storey. The applicants subsequently amended the development application to remove the fourth storey and replace it with a western wing at ground level adjacent to the now three storey boarding house. Development consent was then granted subject to a deferred commencement condition requiring the deletion of that western wing.
The application the subject of the present appeal was lodged with the Council on 7 December 2015 pursuant to s 96(2) of the Environmental Planning and Assessment Act1979 (“the EP&A Act”). It sought, inter alia, to…

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.

Keep reading for free

Create a free CaseChat account to read Gregory v Central Coast Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWLEC 1481
Decision Date: 20 October 2016

CaseChat Overview and Summary

The applicant, Gregory, sought an injunction against the Central Coast Council to prevent the implementation of a local environmental plan. The dispute arose from the council's decision to approve a development that Gregory believed would cause significant environmental harm. The matter was heard in the Land and Environment Court of New South Wales, where the court was tasked with determining the validity of the council's decision and the merits of the applicant's application for an injunction.

The primary legal issue before the court was whether the applicant had established a sufficient likelihood of success on the merits of the case to warrant the granting of an interlocutory injunction. The court also considered whether the balance of convenience favoured the applicant, and if the granting of an injunction would cause significant injustice to the respondent. Furthermore, the court examined the evidence presented regarding the potential environmental impact of the proposed development and whether the council's decision-making process was lawful and in accordance with the relevant legislation.

The court found that the applicant had not demonstrated a sufficient likelihood of success on the merits of the case. The evidence presented did not conclusively show that the proposed development would cause significant environmental harm, and the council's decision-making process was considered to be lawful and reasonable. The court also determined that the balance of convenience did not favour the applicant, and that the granting of an injunction would cause significant injustice to the respondent. Consequently, the application for an injunction was dismissed, and the applicant was ordered to pay the respondent's costs associated with the application.

Orders

Orders of the court

(1) The Notice of Motion filed by the Applicant on 11 October 2016 is dismissed;

(2) The applicants pay the respondent’s costs of the Notice of Motion filed 11 October 2016 as agreed or assessed, unless the one or both of the parties seek to exercise liberty to restore the question of costs to the list, which is granted on 3 days notice, within 14 days of the date of these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gregory v Central Coast Council [2016] NSWLEC 1481
Hearing dates:	18 October 2016
Date of orders:	20 October 2016
Decision date:	20 October 2016
Jurisdiction:	Class 1
Before:	Registrar Gray
Decision:	(1) The Notice of Motion filed by the Applicant on 11 October 2016 is dismissed; (2) The applicants pay the respondent’s costs of the Notice of Motion filed 11 October 2016 as agreed or assessed, unless the one or both of the parties seek to exercise liberty to restore the question of costs to the list, which is granted on 3 days notice, within 14 days of the date of these orders.
Catchwords:	Application for leave to amend modification application; Power to amend modification application; Question of reference point for determining whether it is a new application; Proposed amendment constitutes new modification application
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000 Land and Environment Court Act 1979
Cases Cited:	Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245 Mirvac Projects Pty Ltd v Ku-ring-gai Council [2007] NSWLEC 540
Category:	Procedural and other rulings
Parties:	Kevin Gregory (First Applicant) Patricia Gregory (Second Applicant) Central Coast Council (Respondent)
Representation:	Solicitors: Mr Whealy, Mills Oakley (Applicants) Mr Ball, Central Coast Council (Respondent)
File Number(s):	2016/00149967