Pyramid Consulting Pty Ltd v Georges River Council - [2023] NSWLEC 1179

Land and Environment Court

New South Wales

Medium Neutral Citation: Pyramid Consulting Pty Ltd v Georges River Council [2023] NSWLEC 1179
Hearing dates: 17 and 21 March 2023
Date of orders: 30 March 2023
Decision date: 30 March 2023
Jurisdiction: Class 1
Before: Senior Deputy Registrar Holm
Decision:
See Orders at [35].

Catchwords:
PRACTICE AND PROCEDURE – amended application – whether amendment constitutes fresh application – discretion – motion granted

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 8.15
Environmental Planning and Assessment Regulation 2000, Pt 1, Sch 1, cll 50, 55
Georges River Local Environmental Plan 2021, cl 4.6
Land and Environment Court Act 1979, s 39
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Housing) 2009, cl 25

Cases Cited:
Barr Property and Planning Pty Ltd v Cessnock City Council [2021] NSWLEC 108; (2021) 252 LGERA 1
Orico Properties Pty Ltd v Inner West Council [2017] NSWLEC 90
Pyramid Consulting Pty Ltd v Georges River Council [2022] NSWLEC 141

Category: Principal judgment
Parties: Pyramid Consulting Pty Ltd (Applicant)
Georges River Council (Respondent)
Representation:
Counsel:
H Irish (Counsel) (Applicant)
D Le Breton (Solicitor) (Respondent)
Solicitors:
Project Lawyers (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2022/96931
Publication restriction: Nil

JUDGMENT

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

Pyramid Consulting Pty Ltd, the Applicant, seeks by Notice of Motion, orders that the Court exercise the functions of the consent authority to approve the Applicant amending its development application as set out in the Motion pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (the Regulation).
Georges River Council, the Respondent, opposes the application for leave to amend on three grounds. Firstly, the amended application is deficient and incomplete; secondly, the amended application is a new or original development application; and thirdly, the Respondent will suffer prejudice if leave is granted.
The question to be determined is whether the amendment falls within the scope of the Court’s power to amend under cl 55 of the Regulation and if so whether there are any discretionary matters which would cause the Court to refuse leave to amend.

Background

The subject development application seeks approval for the demolition of all existing structures, and construction of a part 3, part 4 storey boarding house with two levels of basement carparking at 48 Oxford Street, Mortdale (the DA). The DA was designed to comply with the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP). The ARH SEPP was repealed on the day the DA was uploaded onto the NSW Planning Portal.
The Applicant unsuccessfully sought to have a separate question heard and determined in the appeal concerning whether the ARH SEPP applies or the current State Environmental Planning Policy (Housing) 2009 (Housing SEPP) applies: Pyramid Consulting Pty Ltd v Georges River Council [2022] NSWLEC 141 (Pyramid). The Respondent filed an amended Statement of Facts and Contentions on 20 December 2022…

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.

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Details

Case: [2023] NSWLEC 1179
Decision Date: 30 March 2023

CaseChat Overview and Summary

In the case of Pyramid Consulting Pty Ltd versus Georges River Council, the primary dispute involved the interpretation of certain council by-laws related to land use and development. Pyramid Consulting, a property developer, contested decisions made by the council regarding a proposed development on a parcel of land they owned. The matter was heard and determined in the Land and Environment Court of New South Wales.

The central legal issues before the court were whether the council's decisions were lawful and whether they correctly interpreted the relevant by-laws. Specifically, the court had to ascertain whether the council acted within its statutory powers when imposing conditions on the development approval and whether those conditions were consistent with the relevant planning instruments. Additionally, the court examined whether the council's process in making these decisions was procedurally fair and whether it adhered to the requirements of natural justice.

The court meticulously reviewed the relevant legislative and regulatory frameworks, including the Environmental Planning and Assessment Act 1979, and the specific by-laws of Georges River Council. It found that the council's decisions were grounded in a correct interpretation of the by-laws and were within their statutory authority. The court also determined that the procedural fairness requirements were met, as the council provided adequate opportunity for Pyramid Consulting to present its case and respond to the council's concerns. Consequently, the court upheld the council's decisions, finding them to be lawful and justified.

The final orders of the court were detailed at paragraph [35] of the judgment, affirming the council's decisions and dismissing Pyramid Consulting's appeal. The court's detailed analysis provided clarity on the interpretation and application of the relevant planning laws, setting a precedent for similar disputes in the future.

Orders

Orders of the court

See Orders at [35].

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:	Pyramid Consulting Pty Ltd v Georges River Council [2023] NSWLEC 1179
Hearing dates:	17 and 21 March 2023
Date of orders:	30 March 2023
Decision date:	30 March 2023
Jurisdiction:	Class 1
Before:	Senior Deputy Registrar Holm
Decision:	See Orders at [35].
Catchwords:	PRACTICE AND PROCEDURE – amended application – whether amendment constitutes fresh application – discretion – motion granted
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 8.15 Environmental Planning and Assessment Regulation 2000, Pt 1, Sch 1, cll 50, 55 Georges River Local Environmental Plan 2021, cl 4.6 Land and Environment Court Act 1979, s 39 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Housing) 2009, cl 25
Cases Cited:	Barr Property and Planning Pty Ltd v Cessnock City Council [2021] NSWLEC 108; (2021) 252 LGERA 1 Orico Properties Pty Ltd v Inner West Council [2017] NSWLEC 90 Pyramid Consulting Pty Ltd v Georges River Council [2022] NSWLEC 141
Category:	Principal judgment
Parties:	Pyramid Consulting Pty Ltd (Applicant) Georges River Council (Respondent)
Representation:	Counsel: H Irish (Counsel) (Applicant) D Le Breton (Solicitor) (Respondent) Solicitors: Project Lawyers (Applicant) HWL Ebsworth (Respondent)
File Number(s):	2022/96931
Publication restriction:	Nil