Hakim v Canada Bay City Council

Land and Environment Court

of New South Wales

CITATION:

Hakim v Canada Bay City Council [2006] NSWLEC 746

PARTIES:

APPLICANTS:
Mick Bechara Hakim and Yvonne Hakim

FIRST RESPONDENT:
Canada Bay City Council

SECOND RESPONDENT:
Minister for Ports and Waterways

FILE NUMBER(S):

11200 - 11203 of 2005

CORAM:

Biscoe J

KEY ISSUES:

Development Application :- Application to amend plans – whether amendment within scope of Environmental Planning and Assessment Regulation 2000 cl 55

LEGISLATION CITED:

Environmental Planning and Assessment Regulation 2000, cl 55
Land and Environment Court Rules 1996 Pt 10 r 1

CASES CITED:

Ebsworth v Sutherland Shire Council [2005] NSWLEC 603;
Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292

DATES OF HEARING:

11/10/2006

EX TEMPORE JUDGMENT DATE:

10/11/2006

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr P Tomasetti, barrister
SOLICITORS
D C Balog & Associates

FIRST RESPONDENT:
Mr P Jackson, solicitor
SECOND RESPONDENT:
Mr I Hemmings, barrister
SOLICITORS
FIRST RESPONDENT:
Pike Pike and Fenwick
SECOND RESPONDENT:
Lindsay Taylor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

11 October 2006

11200-11203 of 2005

MICK BECHARA HAKIM AND YVONNE HAKIM v CANADA BAY CITY COUNCIL AND ANOR.

JUDGMENT

:

1 The applicants by notice of motion seek leave to amend their plans in this appeal in class 1 of the Court’s jurisdiction. The application is opposed. The two issues are whether there is power to grant the amendment and whether, as a matter of discretion, the power should be exercised in favour of the applicants. Clause 55 of the Environmental Planning and Assessment Regulation 2000 provides:

(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 results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development.

2 The appeal is from the refusal by the respondent council to grant consent to a development which is described in its notice of determination as construction of a seawall, swimming pool, retaining wall and access stairs, landscaping, relocation of boulders and the excavation and levelling of the site.

3 The site is located on the Parramatta River. There are a number of related proceedings, four in all. All the proceedings have been fixed for hearing over three days on 6-8 November. I do not think that it is necessary for present purposes to delve into the precise inter-relationship of all the proceedings, save to say that they are all closely related in one way or another.

4 The matter has been in the list for case management and for directions on a good number of occasions. On 30 August 2006 the parties’ experts met at the site. Following that meeting the applicants were advised that all experts agreed that the plans were deficient and could not be supported. It appears that…