Malass v Strathfield Municipal Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Malass v Strathfield Municipal Council [2021] NSWLEC 115

Hearing dates:

25 October 2021

Date of orders:

26 October 2021

Decision date:

25 October 2021

Jurisdiction:

Class 1

Before:

Robson J

Decision:

See orders at [52]-[53]

Catchwords:

CIVIL PROCEDURE — notice of motion to amend plans and documents in development application — cl 55 Environmental Planning and Assessment Regulation 2000 (NSW) — discretion — s 39 Land and Environment Court Act 1979 (NSW) — notice of motion granted

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), Sch 5, ss 8.7, 8.18, 8.25, 9.34

Environmental Planning and Assessment Regulation 2000 (NSW), cl 55

Land and Environment Court Act 1979 (NSW), s 39

Uniform Civil Procedure Rules 2005 (NSW), r 49.19

Cases Cited:

Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260

National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315; [2002] NSWCA 273

Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80

Strathfield Municipal Council v Malass [2021] NSWLEC 112

Category:

Procedural rulings

Parties:

Sarah Malass (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
R White (Applicant)
G Farland (Respondent)

Solicitors:
Project Lawyers (Applicant)
Bartier Perry Pty Limited (Respondent)

File Number(s):

2020/00291053; 2021/00069569; 2021/00069575

Publication restriction:

Nil

Judgment

1. By notices of motion filed on Friday 22 October 2021, Sarah Malass (‘applicant’) seeks orders that she be allowed to rely upon amended plans and documents in three discrete Class 1 proceedings, each scheduled to commence a concurrent three-day hearing on Tuesday 26 October 2021 (continuing on 27 October and 8 November 2021). Strathfield Municipal Council (‘Council’), the respondent in each of the Class 1 proceedings, opposes the orders.

2. The hearing of the motions proceeded before me as Duty Judge at 2pm yesterday, Monday 25 October 2021. Mr R White of counsel appeared for the applicant and Mr G Farland of counsel appeared for Council.

3. At the completion of the hearing, given the urgency of the orders sought by the applicant, I gave orders effectively allowing the applicant to rely upon the amended plans and documents in one of the Class 1 proceedings, and vacating the first two days of the hearing (only), and listing the hearing for a further day on 10 November 2021 for the three Class 1 proceedings. I indicated that I would provide reasons today. These are those reasons.

Background

4. As the background facts to the three Class 1 proceedings are both unusual and relatively uncontentious, they require some explication prior to considering the respective positions of the parties in relation to the motions.

5. Each of the Class 1 proceedings relates to work undertaken at Lot 62 in Deposited Plan 15955, known as 27 Boden Avenue, Strathfield (‘Land’). On 22 November 2017, Development Application No. 2017/91/1 was approved by Council, providing for the demolition of existing structures and the construction of a new two-story dwelling with basement parking and swimming pool on the Land.

6. As a result of significant building…