Thunderbirds Are Go Pty Ltd v Council of the City of Ryde

[2023] NSWLEC 1401

Land and Environment Court

New South Wales

Medium Neutral Citation:

Thunderbirds Are Go Pty Ltd v Council of the City of Ryde [2023] NSWLEC 1401

Hearing dates:

16 June 2023

Date of orders:

26 July 2023

Decision date:

26 July 2023

Jurisdiction:

Class 1

Before:

Froh R

Decision:

The Court orders that:

(1) The motion is dismissed.

Catchwords:

Motion to amend a development application – exercise of discretion – motion dismissed

Legislation Cited:

Environmental Planning and Assessment Act 1979, Pt 4

Category:

Procedural rulings

Parties:

Thunderbirds Are Go Pty Ltd (Applicant)
Council of the City of Ryde (Respondent)

Representation:

Counsel:
E Ryan (Solicitor) (Applicant)
S Berveling (Respondent)

Solicitors:
Mills Oakley (Applicant)
Council of the City of Ryde (Respondent)

File Number(s):

2023/26469

Publication restriction:

Nil

JUDGMENT

1. The matter came before me on 16 June 2023 for the return of a notice of motion whereby the Applicant sought to amend its development application.

2. The Council opposed the motion and submitted to me that I should exercise my discretion to refuse the amendment. The basis of the Council’s opposition to the motion is that the amended development proposal now includes details of a pedestrian bridge for which consent is not sought.

3. Both parties are clear that the Applicant has included the pedestrian bridge in the amended materials as a concept of a pedestrian bridge and its purpose is for the assessment of the proposed development.

4. Both parties have filed written submissions with the Court for my consideration.

5. In its written submissions, the Applicant states that the pedestrian bridge has been included for assessment by the consent authority, but not approval, allowing the consent authority to consider the impact of the proposed development in full, which includes a pedestrian bridge.

6. However, the Applicant also states in its written submission that “it is not necessary for the pedestrian bridge shown conceptually to be same design as the pedestrian bridge that may ultimately be approved”. It was put to me that it is not the pedestrian bridge itself, but the likely environmental impacts of the pedestrian bridge that must be assessed.

7. I do not accept that submission. For a judge or commissioner of this Court to assess the impact of the pedestrian bridge, there must be certainty. My view is that the proposed amendment to the development that is before the Court lacks certainty. Further to this point, under the Environmental Planning and Assessment Act 1979, it defines development application to mean an application for consent under Part 4 of that Act. As consent is not sought for the pedestrian bridge, I am exercising my discretion on this occasion and decline to grant leave to the Applicant to amend the development application and I dismiss the motion.

Orders

8. The Court orders that:

1. The motion is dismissed.

S Froh

Registrar of the Court

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