Howard-Jones v Leichhardt Council - [2015] NSWLEC 1309

Land and Environment Court

New South Wales

Medium Neutral Citation: Howard-Jones v Leichhardt Council [2015] NSWLEC 1309
Hearing dates: 30 July 2015
Decision date: 05 August 2015
Jurisdiction: Class 1
Before: O’Neill C
Decision:
The Applicant’s Notice of Motion dated 28 July 2015 seeking leave to amend the application is dismissed.

Catchwords: NOTICE OF MOTION: motion to amend the application; whether amended architectural plans constitute a new application; whether the Court’s discretion should be exercised in favour of the applicant.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Waite v Blacktown City Council [2004] NSWLEC 157
Hakim v Canada Bay City Council [2006] NSWLEC 746
Category: Principal judgment
Parties: David & Annaleise Howard-Jones (Applicant)
Leichhardt Municipal Council (Respondent)
Representation: Counsel:
Mr G. McKee solicitor (Applicant)
Mr M. Bonanno solicitor (Respondent)
Solicitor:
McKees Legal Solutions (Applicant)
Leichhardt Council (Respondent)

File Number(s): 10374 of 2015

Judgment

COMMISSIONER: Appeal No. 10374 of 2015 is an appeal against the refusal of Development Application No. D/2015/98 by Leichhardt Council for alterations and additions to an existing dwelling at 5 Phoebe Street, Balmain. This judgment deals with the applicant’s Notice of Motion dated 28 July 2015 to amend the application in respect of the appeal.
Attached to the applicant’s Notice of Motion is a set of architectural plans identified as Revision E and dated 23.7.15 and a schedule of amendments to architectural plans for each of the five issues of the plans. The Notice of Motion seeks an order that the applicant be granted leave to rely on the Revision E set of architectural plans. Leichhardt Council (the Council) opposes leave being granted on the basis that the set of architectural plans attached to the applicant’s Notice of Motion constitute an original development; the proposal in the plans attached to the Notice of Motion does not address the Council’s contentions and raises new issues. Mr Mark Bonanno, the Council’s solicitor, filed an affidavit outlining the communications between the applicant and Council and attached to the affidavit are copies of emails exchanged between the parties.
The appeal was set down for mandatory conciliation and arbitration under s 34AA of the Land and Environment Court Act 1979 (LEC Act), on 8 July, 2015. On 8 July, following the site view, the hearing of evidence from resident objectors and the commencement of the conciliation at Court, the conciliation was adjourned until Monday 3 August, 2015, for the applicant to provide Council with amended plans, consistent with a set of plans presented by the applicant at the conciliation conference, for the purpose of the further joint conferencing of the experts and for the Council to notify the objectors of the amended proposal.

Statutory and policy framework

The relevant sub-sections of cl 55 of the Regulation provide:

55 What is the procedure for amending a development application?
(1) A development application may be amended or varied by the applicant (but…

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 Howard-Jones v Leichhardt 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: [2015] NSWLEC 1309
Decision Date: 05 August 2015

CaseChat Overview and Summary

The matter before the court involved the Applicant, Howard-Jones, seeking leave to amend their application against the Respondent, Leichhardt Council. The nature of the dispute centred around the Applicant's desire to modify the claims they had initially presented in their application, which was primarily related to a dispute over council rates and associated procedural issues. The case was heard in the Land and Environment Court of New South Wales, a tribunal with jurisdiction over matters involving environmental, land use, and local government disputes.

The primary legal issues that the court was required to decide involved the procedural rules governing amendments to an application post-hearing. Specifically, the court needed to determine whether the Applicant was entitled to amend their application after the hearing had already commenced and whether such amendments would prejudice the Respondent's ability to adequately respond to the claims. The court had to consider the principles of natural justice and procedural fairness, as well as the relevant statutory provisions and case law governing amendments to pleadings in administrative and environmental law.

In reaching its decision, the court considered the timing of the Applicant's request for amendment, the content of the proposed amendments, and the potential impact on the Respondent's ability to prepare a defence. The court found that the Applicant's request came late in the proceedings and that the proposed amendments introduced new claims that would significantly prejudice the Respondent's ability to respond effectively. The court concluded that granting leave to amend the application at that stage would not be consistent with the principles of natural justice and procedural fairness. Consequently, the court dismissed the Applicant’s notice of motion seeking leave to amend the application. This decision ensured that the Respondent would not be unfairly disadvantaged and that the proceedings could continue in a fair and orderly manner.

Orders

Orders of the court

The Applicant’s Notice of Motion dated 28 July 2015 seeking leave to amend the application is dismissed.

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:	Howard-Jones v Leichhardt Council [2015] NSWLEC 1309
Hearing dates:	30 July 2015
Decision date:	05 August 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Applicant’s Notice of Motion dated 28 July 2015 seeking leave to amend the application is dismissed.
Catchwords:	NOTICE OF MOTION: motion to amend the application; whether amended architectural plans constitute a new application; whether the Court’s discretion should be exercised in favour of the applicant.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Waite v Blacktown City Council [2004] NSWLEC 157 Hakim v Canada Bay City Council [2006] NSWLEC 746
Category:	Principal judgment
Parties:	David & Annaleise Howard-Jones (Applicant) Leichhardt Municipal Council (Respondent)
Representation:	Counsel: Mr G. McKee solicitor (Applicant) Mr M. Bonanno solicitor (Respondent) Solicitor: McKees Legal Solutions (Applicant) Leichhardt Council (Respondent)
File Number(s):	10374 of 2015