Vella v Penrith City Council - [2019] NSWLEC 62

Land and Environment Court

New South Wales

Medium Neutral Citation: Vella v Penrith City Council [2019] NSWLEC 62
Hearing dates: 16 April 2019
Date of orders: 16 April 2019
Decision date: 16 April 2019
Jurisdiction: Class 1
Before: Moore J
Decision:
(1) The Applicant is given leave to rely on amended plans;
(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act, 1979, the Applicant is to pay the costs of the First Respondent that have been thrown away as a result of the amendment of the application for development consent; and
(3) NSW Department of Education is joined as a party in these proceedings.

Catchwords: APPLICATION TO RELY ON AMMENDED PLANS - Applicant to rely on amended plans - no opposition by consent authority - leave granted - costs to be paid to consent of costs thrown away as a result of the amendment
APPLICATION TO BE JOINED AS A PARTY - right of Crown (Department of Education) to appear pursuant to s 64(1) of Land and Environment Court Act 1979 - application for joinder separate and in addition to right of appearance - intention to raise issue in public interest where consent authority not raising issue - public authority acting in public interest not an issue of protecting private interests - in the public interest that the Department of Education be joined - no delay to hearing - no additional expert evidence required - Department joined as Second Respondent
Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.15
Land and Environment Court Act 1979, s 64(1)
State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017
Cases Cited: Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63
Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205
Morrison Design v North Sydney Council [2007] NSWLEC 802
Category: Procedural and other rulings
Parties: Jesse James David Vella (Applicant)
Penrith City Council (Respondent)
NSW Department of Education (Intervener)
Representation: Solicitors:
Mr S Kondilios, Hall & Wilcox (Applicant)
Mr C Drury, Sparke Helmore (Respondent)
Ms M Peatman (Intervener)

File Number(s): 273859-002 and 273859-003 of 2018

EXTEMPORE JUDGMENT

HIS HONOUR: In this matter, unusually, the Crown, which otherwise has a right of appearance in any proceedings in which the public interest is potentially engaged, with that right of appearance arising as consequence of s 64(1) of the Land and Environment Court Act 1979 (the Court Act), seeks additionally, by way of Amended Notice of Motion initially heard by me on 12 April 2019, to be joined pursuant to s 8.15 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) as a party to the proceedings.
When the matter was before me on 12 April 2019, it was drawn to my attention that a Notice of Motion on behalf of the Applicant was set down before the Registrar for determination tomorrow, 17 April 2019, on an application for leave to rely on amended plans.
In order to deal with all…

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: [2019] NSWLEC 62
Decision Date: 16 April 2019

CaseChat Overview and Summary

The Applicant, Vella, sought to amend his application for development consent for a property in Penrith, which the Respondent, Penrith City Council, had previously rejected. The dispute was heard in the Land and Environment Court of New South Wales. The Applicant contested the Council’s decision and sought leave to amend his plans. Additionally, the Applicant sought to join the NSW Department of Education as a party to the proceedings, considering the proximity of the proposed development to a school.

The court was required to decide whether the Applicant could rely on amended plans and if the costs incurred by the Council due to the amendment of the application should be borne by the Applicant. Furthermore, the court had to determine whether the NSW Department of Education should be joined as a party to the proceedings. The primary consideration was the necessity of the amendment and its impact on the Council's processes and resources.

The court granted the Applicant leave to rely on the amended plans, acknowledging the necessity of the amendment to address issues raised in the initial refusal. The court also held that the Applicant should bear the costs incurred by the Council due to the amendment, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act, 1979. Additionally, the court ruled that the NSW Department of Education should be joined as a party to the proceedings, considering the potential impact of the proposed development on the nearby school.

Orders

Orders of the court

(1) The Applicant is given leave to rely on amended plans;

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act, 1979, the Applicant is to pay the costs of the First Respondent that have been thrown away as a result of the amendment of the application for development consent; and

(3) NSW Department of Education is joined as a party in these proceedings.

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:	Vella v Penrith City Council [2019] NSWLEC 62
Hearing dates:	16 April 2019
Date of orders:	16 April 2019
Decision date:	16 April 2019
Jurisdiction:	Class 1
Before:	Moore J
Decision:	(1) The Applicant is given leave to rely on amended plans; (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act, 1979, the Applicant is to pay the costs of the First Respondent that have been thrown away as a result of the amendment of the application for development consent; and (3) NSW Department of Education is joined as a party in these proceedings.
Catchwords:	APPLICATION TO RELY ON AMMENDED PLANS - Applicant to rely on amended plans - no opposition by consent authority - leave granted - costs to be paid to consent of costs thrown away as a result of the amendment APPLICATION TO BE JOINED AS A PARTY - right of Crown (Department of Education) to appear pursuant to s 64(1) of Land and Environment Court Act 1979 - application for joinder separate and in addition to right of appearance - intention to raise issue in public interest where consent authority not raising issue - public authority acting in public interest not an issue of protecting private interests - in the public interest that the Department of Education be joined - no delay to hearing - no additional expert evidence required - Department joined as Second Respondent
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 8.15 Land and Environment Court Act 1979, s 64(1) State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017
Cases Cited:	Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63 Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 Morrison Design v North Sydney Council [2007] NSWLEC 802
Category:	Procedural and other rulings
Parties:	Jesse James David Vella (Applicant) Penrith City Council (Respondent) NSW Department of Education (Intervener)
Representation:	Solicitors: Mr S Kondilios, Hall & Wilcox (Applicant) Mr C Drury, Sparke Helmore (Respondent) Ms M Peatman (Intervener)
File Number(s):	273859-002 and 273859-003 of 2018