Private Property Pty Ltd Mid-Coast Council

[2022] NSWLEC 1293

Land and Environment Court

New South Wales

Medium Neutral Citation:

Private Property Pty Ltd Mid-Coast Council [2022] NSWLEC 1293

Hearing dates:

2 June 2022

Date of orders:

6 June 2022

Decision date:

03 June 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – see [7]

Catchwords:

NOTICE OF MOTION – application to rely on documents

Legislation Cited:

Environmental Planning Assessment Regulation 2000, cl 55

Uniform Civil Procedure Rules 2005, s 31.24

Category:

Procedural rulings

Parties:

Private Property Pty Ltd (Applicant)
Mid-Coast Council (Respondent)

Representation:

Counsel:
A McKelvey (Solicitor) (Applicant)
T Pickup (Solicitor) (Respondent)

Solicitors:
Sparke Helmore Lawyers (Applicant)
Local Government Legal (Respondent)

File Number(s):

2021/328094

Publication restriction:

No

Judgment

1. COMMISSIONER: By notice of motion, the Applicant seeks leave to rely on further documents and reports, prepared in response to matters that had arisen during the course of the appeal.

2. The appeal concerns the Respondent’s refusal of the Applicant’s development application for the development of land at Charlotte Bay, including for a pet resort.

3. An affidavit accompanying the notice of motion from Mr Alan McKelvey, which the Applicant reads in the proceedings, confirms that the Applicant’s further documents and reports have sought to be responsive to matters that have arisen in the proceedings including biodiversity related contentions between the Parties.

4. More specifically, the Applicant seeks leave to reply upon:

1. the following amended plans and other documents in the proceedings:

1. Cover Sheet, Drawing A1.1, dated 2 May 2022;

2. Property Plan, Drawing A1.2, dated 2 May 2022;

3. Site/Roof Plan, Drawing A2.1, dated 2 May 2022;

4. Floor Plan, Drawing A2.2, dated 2 May 2022;

5. Elevations, Drawing A3.1, dated 2 May 2022;

6. Elevations, Drawing A3.2, dated 2 May 2022; and

7. Sections, Drawing A3.3, dated 2 May 2022;

2. the following further documents provided within Exhibit “AM-1” accompanying the affidavit of Mr Alan McKelvey:

1. a landscaping plan prepared by Tattersall Lander Pty Ltd and dated 25 May 2022;

2. a response to statement of facts and contentions prepared by Spectrum Acoustics, dated April 2022, in relation to acoustic matters;

3. a plan of management in relation to the Applicant’s proposed development prepared by Tattersall Lander Pty Ltd and dated May 2022;

4. amended site setout plans and plan of site photographs, accompanying a letter from Mr Bob Lander of Tattersall Lander Pty Ltd and which is dated 26 May 2022.

5. The Respondent confirmed that it has accepted late service of the notice of motion and submits that:

1. it does not oppose the grant of leave for the Applicant to rely on the documents and reports identified above (at [4]) in the proceedings; and

2. it does not seek costs in relation to dealing with the Applicant’s amended plans.

6. The Court notes that:

1. Mid-Coast Council, as the relevant consent authority, agrees under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending the application for development consent to rely on the documents behind tabs 1-5 of Exhibit AM-1 to the affidavit of Mr Alan McKelvey dated 31 May 2022;

2. the Applicant has filed the amended development application with the Court on 31 May 2022.

7. The Court orders:

1. the Court grants the Applicant’s request for leave to rely upon the plans and documents identified above (at [4]) in the proceedings;

2. the Respondent is to lodge the amendment of the development application on the NSW Planning Portal by 4pm, 7 June 2022 and notify the applicant and the Court after it has been lodged;

3. Mr Bob Lander and Mr Ben Lim-Cooper are to confer in relation to contention 1 under s 31.24 of the Uniform Civil Procedure Rules 2005 (UCPR) and prepare a supplementary town planning joint expert report which addresses:

1. the increase in the height of the acoustic barrier around the Outdoor Play Area; and

2. the Plan of Management;

4. the town planning supplementary joint expert report is to be filed by 5pm, 3 June 2022.

……………………………..

M Chilcott

Commissioner of the Court

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Decision last updated: 06 June 2022