Samcourt Pty Ltd v Inner West Council (No 2)

[2017] NSWLEC 169

Land and Environment Court

New South Wales

Medium Neutral Citation:	Samcourt Pty Ltd v Inner West Council (No 2) [2017] NSWLEC 169
Hearing dates:	7 December 2017
Date of orders:	07 December 2017
Decision date:	07 December 2017
Jurisdiction:	Class 1
Before:	Sheahan J
Decision:	See paragraph [10]
Catchwords:	PRACTICE AND PROCEDURE: Review of a Registrar’s decision – amendment of development proposal – vacation of hearing dates – costs.
Legislation Cited:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Marrickville Local Environmental Plan 2011 Uniform Civil Procedure Rules 2005
Cases Cited:	Groeneveld v Wollongong City Council (2009) 168 LGERA 260 Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292 Samcourt Pty Ltd v Inner West Council [2017] NSWLEC 1691
Category:	Procedural and other rulings
Parties:	Samcourt Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Mr T To, barrister (Applicant) Mr J Strati, solicitor (Respondent)   Solicitors: Jaku Legal (Applicant) Inner West Council (Respondent)
File Number(s):	2017/126074

EXTEMPORE Judgment

1. The Registrar refused leave for the applicant to rely upon amended plans and documents.

2. The applicant contends that the amendments sought are responsive to joint expert reports, and Council’s position regarding the proposal, and seeks review of the Registrar’s decision: Samcourt Pty Ltd v Inner West Council [2017] NSWLEC 1691.

3. An acknowledged consequence of success in this review application is that the hearing next week will need to be vacated, but the applicant contends that the amendment will likely result in agreement on many issues regarding its mixed use development, and a consequent saving of hearing time.

4. Council today agrees to the orders sought by the applicant.

5. The review should not be granted by consent, but it is not necessary to find material error. The Court must be satisfied, essentially, that it is in the interests of justice, and otherwise “reasonable”, to depart from the Registrar’s decision: see Uniform Civil Procedure Rules 2005 Rule 49.19; Groeneveld v Wollongong City Council (2009) 168 LGERA 260 at [12-13], and the many cases that have followed it.

6. I accept Mr To’s submission that the Registrar focussed on only one effect of the changes, to hold that the amendment was really a new application: Radray Constructions Pty Ltd v Hornsby Shire Council (“Radray”) (2006) 145 LGERA 292. Her focus was on an effective change in the characterization of the purpose of the development from “shop top housing” to “largely commercial development”. Such a submission was not put to her by Council, and she did not raise that issue during the hearing such that the parties could respond.

7. If the refusal of leave, and the hearing dates, are to stand, the Court will be deciding an application which the applicant is not keen to pursue, and the Council will continue to resist.

8. It is at least arguable that the applicant was denied procedural fairness by the Registrar, and/or that she wrongly construed the applicant’s proposal (as amended in September following the amendment of the applicable Local Environmental Plan in June to prohibit “shop top housing”), and/or that the unintended consequences of her decision are in some ways “perverse”.

9. It is not inconsistent with Radray, and the beneficial and facultative qualities of the amendment provision, and it is consistent with the “just, quick and cheap” injunctions of the Civil Procedure Act 2005, for the Court to accede to the now joint position of the parties.

10. I will publish these reasons, but I now make the following orders, in accordance with the Short Minutes of Order jointly submitted by the parties:

1. The orders made by the Registrar on 4 December 2017 are set aside.

2. Leave is granted to the Applicant to rely on the following amended plans and documents:

Drawing No.	Drawing Name	Date
A-1.1 W	Basement	17 November 2017
A-1.2 Y	Ground Floor	16 November 2017
A-1.3 Y	First Floor	16 November 2017
A-1.4 X	Second Floor	16 November 2017
A-1.5 X	Third Floor	16 November 2017
A-1.8 H	GFA Calculations	26 October 2017
A-2.0 I	Proposed Elevations	17 November 2017
A-5.0 M	Proposed Sections	16 November 2017
A-5.1 J	Proposed Sections	16 November 2017
A-7.10-01 D	Shadow Diagrams – June 21 – 9am existing	28 November 2017
A-7.10-02 D	Shadow Diagrams – June 21 –9am proposed	28 November 2017
A-7.10-03 B	Shadow Diagrams – June 21 –10am existing	28 November 2017
A-7.10-04 B	Shadow Diagrams – June 21 –10am proposed	28 November 2017
A-7.10-05 B	Shadow Diagrams – June 21 –11am existing	28 November 2017
A-7.10-06 B	Shadow Diagrams – June 21 –11am proposed	28 November 2017
A-7.10-07 D	Shadow Diagrams – June 21 –12pm existing	28 November 2017
A-7.10-08 D	Shadow Diagrams – June 21 –12pm proposed	28 November 2017
A-7.10-09 B	Shadow Diagrams – June 21 –1pm existing	28 November 2017
A-7.10-10 B	Shadow Diagrams – June 21 –1pm proposed	28 November 2017
A-7.10-11 B	Shadow Diagrams – June 21 –2pm existing	28 November 2017
A-7.10-12 B	Shadow Diagrams – June 21 –2pm proposed	28 November 2017
A-7.10-13 D	Shadow Diagrams – June 21 –3pm existing	28 November 2017
A-7.10-14 D	Shadow Diagrams – June 21 –3pm proposed	28 November 2017
SV1 D	Solar access – Sun view diagrams – June 21 – 9.00am Existing	28 November 2017
SV2 D	Solar access – Sun view diagrams – June 21 – 10.00am Existing	28 November 2017
SV3 D	Solar access – Sun view diagrams – June 21 – 11.00am Existing	28 November 2017
SV4 D	Solar access – Sun view diagrams – June 21 –12.00pm Existing	28 November 2017
SV5 D	Solar access – Sun view diagrams – June 21 – 1.00pm Existing	28 November 2017
SV6 D	Solar access – Sun view diagrams – June 21 – 2.00pm Existing	28 November 2017
SV7 D	Solar access – Sun view diagrams – June 21 – 3.00pm Existing	28 November 2017
SV8 D	Solar access – Sun view diagrams – June 21 – 9.00am Proposed	28 November 2017
SV9 D	Solar access – Sun view diagrams – June 21 – 10.00am Proposed	28 November 2017
SV10 D	Solar access – Sun view diagrams – June 21 – 11.00am Proposed	28 November 2017
SV11 D	Solar access – Sun view diagrams – June 21 – 12.00pm Proposed	28 November 2017
SV12 D	Solar access – Sun view diagrams – June 21 – 1.00pm Proposed	28 November 2017
SV13 D	Solar access – Sun view diagrams – June 21 – 2.00pm Proposed	28 November 2017
SV14 D	Solar access – Sun view diagrams – June 21 – 3.00pm Proposed	28 November 2017
Document		Date
Updated SEPP 65 Report		29 November 2017
Updated BASIX Certificate		4 December 2017

3. The hearing dates of 12, 13 and 14 December 2017 are vacated.

4. The Applicant is to pay the Respondent’s costs of the Notice of Motion dated 27 November 2017, seeking leave to rely on amended plans, in the sum of $2,750 (inclusive of GST) within 28 days of receipt of an invoice.

5. Pursuant to s 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs that are thrown away as a result of amending the development application, as agreed or assessed.

6. The Court grants leave to the parties to approach the Registrar by electronic means with a view to her setting a new hearing date and giving further necessary directions.

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Decision last updated: 07 December 2017