Scouts Australia v Ryde City Council - [2002] NSWLEC 56

Reported Decision: 120 LGERA 98

Land and Environment Court

of New South Wales

CITATION: Scouts Australia v Ryde City Council [2002] NSWLEC 56

PARTIES:
APPLICANT
Scouts Australia
RESPONDENT
Ryde City Council

FILE NUMBER(S): 11073 of 2001

CORAM: Talbot J

KEY ISSUES: Development Application :- amendment following lodgement of appeal - power of Court to agree to amendment of plans
Practice and Procedure:- Land and Environment Court Act 1979 s 39(2) - power of Court to agree to amendment of plans

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 80A(1)(g)
Land and Environment Court Act 1979 s 39(2), s 68
Environmental Planning and Assessment Regulation 2000 cl 55
Land and Environment Court Rules 1996 Pt 13 r 16(b1)
Ryde Development Control Plan No 15A

CASES CITED: Basemount Pty Limited v Baulkham Hills Shire Council [2001] NSWLEC 95;
Ervin Mahrer and Partners v Strathfield Council [No 2] (2001) 115 LGERA 259;
Gibson v Mosman Municipal Council (2001) 114 LGERA 416;
McDougall v Warringah Shire Council (1993) 30 NSWLR 258;
North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 66 LGRA 352;
R v Shanahan and Others; Ex parte Northern Territory Planning Authority (1984) 54 LGERA 255;
Ross Karp Pty Limited v Randwick City Council (1999) 106 LGERA 397 ;
Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261;
Urbis Pty Ltd v Sutherland Shire Council [2001] NSWLEC 147 Willoughby Municipal Council v Manchil Pty Limited (1974) 29 LGRA 303

DATES OF HEARING: 08/03/2002, 15/04/2002 (final written submissions)

DATE OF JUDGMENT:
04/24/2002

LEGAL REPRESENTATIVES:

APPLICANT
Ms J M Studdert (Solicitor)
SOLICITORS
Deacons Lawyers
RESPONDENT
Mr TF Robertson SC
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND Matter No. 11073 of 2001
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 24 April 2002

Scouts Australia

Ryde City Council

Respondent

REASONS FOR JUDGMENT

1. By form of application class one filed on 20 December 2001 the applicant, Scouts Australia, has appealed against the determination of development application DA 805/01 by Ryde City Council (“the council”) on 20 November 2001, by the refusal of consent.

2. The development application was lodged with the respondent on 2 September 2001.

3. Prior to the consideration of the application by the council, amended plans were prepared on behalf of the applicant in an attempt to address the reasons for the prospective refusal of the application raised by the officers of the council. By letter dated 15 November 2001 the council returned the amended plans to the applicant advising that as the development application had been fully assessed the council did not agree to the submission of amended plans at that time. Following rejection of the amended plans, the applicant advised the council by letter dated 20 November 2001 that should the original application be refused by the council, Scouts Australia would ask the Land and Environment Court to accept the amended plans as part of the application to the Court.

4.…

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 Scouts Australia v Ryde City 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: [2002] NSWLEC 56
Decision Date: 04/24/2002

CaseChat Overview and Summary

Scouts Australia has appealed against the Ryde City Council's refusal of a development application concerning proposed villas on their land. The council had previously rejected amended plans submitted by Scouts Australia following their initial refusal. Scouts Australia now seeks leave to rely on these amended plans in their appeal to the Land and Environment Court. The key issues are whether the Court has the power to agree to amended plans following an appeal and whether this power should be exercised in this case.

The Court held that section 39(2) of the Land and Environment Court Act gives the Court the power to agree to amended plans, in line with the council's power under the Environmental Planning and Assessment Regulation. The Court rejected the council's argument that this power only extends to substantive decisions, not administrative ones. The Court found that the power to agree to amendments is relevantly possessed by the council and thus available to the Court under section 39(2).

The Court also held that the power to agree to amended plans may be exercised even after the council has initially refused amendments, so long as the applicant re-submits the amended plans as part of the appeal process. The Court found that the amended plans in this case did not constitute a substantially different development and could be considered as part of the original application.

Accordingly, the Court granted Scouts Australia leave to rely on the amended plans, subject to conditions to allow the council to fulfil any necessary administrative functions. The Court directed the parties to prepare orders formalising this decision.

In summary, the Court found that it has the power under section 39(2) to agree to amended plans following an appeal and that this power should be exercised in this case, provided appropriate conditions are imposed. The amended plans were found not to constitute a substantially different development.

Orders