Mars City Pty Ltd v Burwood Council [2020] NSWLEC 1683

Land and Environment Court New South Wales

Medium Neutral Citation: Mars City Pty Ltd v Burwood Council [2020] NSWLEC 1683 Hearing dates: 21 December 2020 Date of orders: 24 December 2020 Decision date: 24 December 2020 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The notice of motion filed on 9 December 2020 is dismissed. Catchwords: PROCEDURE – Notice of Motion – Uniform Civil Procedure Rules – Rule 36.16 Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Mars City Pty Ltd (Applicant) Burwood Council (Respondent) Representation: Counsel:: A Gadiel (Solicitor) (Applicant) S Shneider (Solicitor) (Respondent)

Solicitors: Mills Oakley (Applicant) Houston Dearn O'Connor (Respondent) File Number(s): 2019/337884 Publication restriction: No

Judgment 1. COMMISSIONER: These proceedings came before me on a Notice of Motion (Motion) filed on 9 December 2020 that was listed for hearing on 21 December 2020. The Motion seeks to amend the orders made in my judgment in the substantive proceedings: Mars City Pty Ltd v Burwood Council [2020] NSWLEC 1585 (the Judgment), pursuant to the Court's power at rule 36.16 of the Uniform Civil Procedure Rules 2005 (UCPR). 2. The Judgment upheld the Applicant's appeal against the deemed refusal by the Burwood Council (the Respondent) of Development Application No. DA/2019/68 for construction of a 20-storey boarding house with car parking, retention of the existing commercial building, and stratum subdivision at 4 Railway Parade, Burwood. 3. The amendment to the orders sought by the Applicant is described in the affidavit of Ms Adrienne McLoon, filed 9 December 2020 (First Affidavit) annexed to the Motion as follows: "The Respondent is directed to register the development consent on the NSW planning portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 forthwith." 1. The Applicant submits that the Court is required, as far as possible, to completely and finally determine all matters in controversy between the parties in accordance with s 22 of the Land and Environment Court Act 1979 (LEC Act), and the Court has the power, under s 23 of the LEC Act, to make orders of such kinds as the Court thinks appropriate. 2. In this case, where the Court has made orders and delivered judgment, the Applicant relies on r 36.16 of the UCPR which relevantly provides: 36.16 Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. … (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. …