Heir Asquith Pty Ltd v Shoalhaven City Council

[2023] NSWLEC 1772

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Heir Asquith Pty Ltd v Shoalhaven City Council [2023] NSWLEC 1772

Hearing dates:

7 November 2023

Date of orders:

27 November 2023

Decision date:

27 November 2023

Jurisdiction:

Class 1

Before:

Froh R

Decision:

The Court orders:

(1) The Notice of Motion is granted.

(2) The Application is granted leave to rely on the Amended and Additional Material.

(3) The Court, in exercising the functions of the consent authority, under section 39(2) of the Land and Environment Court Act 1979, agrees, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending Development Application No. SF10921 in accordance with Amended and Additional Material, being the documents listed in Annexure A to the Notice of Motion.

(4) The Applicant is to lodge the Amended and Additional Material on the NSW Planning Portal within 7 days of the date of these Orders.

(5) The Respondent is to file and serve its Amended Statement of Facts and Contentions in accordance with Schedule B of Practice Note – Class 1 Development Appeals by 20 December 2023.

(6) The Applicant is to file any Statement of Facts and Contentions in Reply by 25 January 2024.

(7) The Applicant is to pay the Respondent’s reasonable costs thrown away as a result of the amendment in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

Catchwords:

Notice of motion to amend plans – approved – amendment not considered to be past the tipping point.

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 39

Category:

Principal judgment

Parties:

Heir Asquith Pty Ltd (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/263435

Publication restriction:

Nil

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. REGISTRAR: This Notice of Motion to amend the development application is opposed by the Council as it considers the proposed amendment to be outside of my power and constitute a new application.

2. It was put to me by Council that it considers the amendments to be past the tipping point and pointed to the changes to the road locations and orientation of the individual subdivision lots in support of this.

3. I disagree with the Council.

4. Although the number, position, location and orientation of the lots in the subdivision have changed, I do not agree that these changes mean that the proposed amendment constitutes a new application.

5. As such, I am exercising my power under s 39(2) of the Land and Environment Court Act 1979 to the allow the amendment to the application under cl 55 of the Environmental Planning and Assessment Regulation 2000 and make the following orders.

6. The Court orders:

1. The Notice of Motion is granted.

2. The Application is granted leave to rely on the Amended and Additional Material.

3. The Court, in exercising the functions of the consent authority, under section 39(2) of the Land and Environment Court Act 1979, agrees, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No. SF10921 in accordance with Amended and Additional Material, being the documents listed in Annexure A to the Notice of Motion.

4. The Applicant is to lodge the Amended and Additional Material on the NSW Planning Portal within 7 days of the date of these Orders.

5. The Respondent is to file and serve its Amended Statement of Facts and Contentions in accordance with Schedule B of Practice Note – Class 1 Development Appeals by 20 December 2023.

6. The Applicant is to file any Statement of Facts and Contentions in Reply by 25 January 2024.

7. The Applicant is to pay the Respondent’s reasonable costs thrown away as a result of the amendment in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

S Froh

Registrar of the Court

263435.23 Annexure A

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Amendments

19 December 2023 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”) correction is made to a typographical error in Order (1).