Land and Environment Court New South Wales Medium Neutral Citation: Caruana v Central Coast Council [2023] NSWLEC 108 Hearing dates: 17 October 2023 Date of orders: 17 October 2023 Decision date: 17 October 2023 Jurisdiction: Class 1 Before: Pain J Decision: In the Applicants' amended Notice of Motion filed in Court on 17 October 2023 the Court orders that: 1. The decision of Deputy Registrar Holm of 6 September 2023 is set aside pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW). 2. Pursuant to reg 38(4) of the Environment Planning and Assessment Regulation 2021 (NSW) the Applicants are granted leave to rely on the amended and supplementary plans and reports set out in Annexure A of the Applicants' amended Notice of Motion. 3. The hearing commencing Monday 23 October 2023 is vacated. 4. Pursuant to s 8.15(3) of the Environment Planning and Assessment Act 1979 (NSW) the Applicants are to pay the Respondent's costs thrown away as agreed or assessed. 5. Matter adjourned to the Registrar's list on Friday 20 October 2023 with leave to approach the Online Court beforehand for a date for a section 34 conciliation conference with a preference for one of the previously listed hearing dates of 23-27 October 2023. Catchwords: CIVIL PROCEDURE — review of Registrar's decision Legislation Cited: Environment Planning and Assessment Act 1979 (NSW), ss 4.22, 8.15 Environment Planning and Assessment Regulation 2021 (NSW), reg 38 Uniform Civil Procedure Rules 2005 (NSW), r 49.19 Land and Environment Court Act 1979 (NSW), s 34 Cases Cited: Barr Property and Planning Pty Ltd v Cessnock City Council (2021) 252 LGERA 1; [2021] NSWLEC 108 Benyon v City of Canada Bay [2022] NSWLEC 122 Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155 Category: Procedural rulings Parties: George Caruana (First Applicant) Julie Caruana (Second Applicant) Central Coast Council (Respondent) Representation: Counsel: J Doyle (Applicants) Not applicable (Respondent) Solicitors: Colin Biggers & Paisley Lawyers (Applicants) Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/00015367-003 Ex Tempore JUDGMENT 1. A notice of motion filed 4 October 2023 seeking various orders was filed by the Applicants, which was amended without opposition from the Respondent today. The amendments concern prayer 2 of the notice of motion. The Applicants seeks various orders in relation to the conduct of these Class 1 appeal proceedings inter alia. 2. Prayer 1 of the amended notice of motion seeks review of the decision of Deputy Registrar Holm of 6 September 2023 which refused an application to rely on amended plans. The amended plans are described in the affidavit of Ms Pickerd dated 31 August 2023. The Respondent neither opposes ornor supports the review application. 3. Review of the Deputy Registrar's decision is permitted under r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The principles relevant to such a review were identified by me in Benyon v City of Canada Bay [2022] NSWLEC 122 at [35]-[36]. I do not need to find error on the part of the Deputy Registrar and am considering the matter afresh. I note that the Deputy Registrar refused the application to amend, relying on Barr Property and Planning Pty Ltd v Cessnock City Council (2021) 252 LGERA 1; [2021] NSWLEC 108 (Barr) which considered an amendment to a development application to change to a concept plan pathway inter alia which has some broad similarity to this matter. 4. The development described in the development application as originally made comprised: 1. Extensive civil works to prepare the site for redevelopment including particularly substantial filling and recontouring to allow for flood storage to address flood affectation, as well as the provision of drainage, stormwater detention, and services. 2. Construction of 17 industrial units; 3. A service centre incorporating a carwash, takeaway food and drink premises, and a service station, including petrol bowsers and retail store; 4. Signage; 5. An ecological management area; and 6. Landscaping works including riparian zone revegetation. 1. The substantial change to the original development application plans that the Applicants wish to make for the purposes of considering this review is that it is to be amended so that it is made pursuant to s 4.22 of the Environment Planning and Assessment Act 1979 (NSW) (EPA Act) as a concept plan due to a decision not to proceed with one part of the development relating to a service centre. The balance of the proposal the subject of the original development application is generally intended to proceed. I was taken to the amended plans which identified the extent of the intended changes. Looking at the substance of what is now intended, and supported by the agreement of the planners in their joint report dated 29 September 2023 referred to in the course of argument that the application remains in substance the same, I consider that the amended plans before the Deputy Registrar should be allowed to be relied on by the Applicants. The change to the reliance on a concept plan with an extensive Stage 1 does not alter in substance the development application and I do not consider it is a new one, the relevant consideration identified in Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155 and the many cases that have relied upon it. I do not consider this to be in conflict with Barr which happened to concern an application to vary a development application to introduce a concept plan pathway also. The circumstances in that matter were different and each case must be determined on its own facts. 2. I will make the order sought in prayer 1 that the decision of Deputy Registrar Holm of 6 September 2023 be set aside pursuant to r 49.19 of the UCPR. 3. Prayer 2 of the amended notice of motion seeks leave to rely on amended plans which can be considered in light of my decision on prayer 1. The Respondent appeared to support reliance on the amended plans. Changes to plans are permitted under reg 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), and where allowed by the Court need not be placed on the NSW Planning Portal by virtue of reg 38(4). The amended notice of motion handed up today introduced a new set of plans from what were before the Registrar as the experts have continued discussing the proposal and plans have been amended in response. I have been taken to evidence which confirms this submission in the affidavit of Mr Stewart planner dated 16 October 2023. I am informed that there is a large measure of agreement between the experts with still a couple of matters yet to be resolved. It is appropriate that I allow reliance on the plans at Annexure A of the amended notice of motion. 4. Prayer 3 need not be considered in light of my earlier decision. 5. Prayer 4 of the amended notice of motion seeks vacation of the hearing dates. Given the nature of the amended plans at Annexure A the Respondent considered that these will require notification to the public, the Natural Resource Access Regulator (NRAR) and Transport for New South Wales. The hearing date is imminent and these steps cannot be satisfactorily completed in the timeframe. The parties are also reasonably confident that remaining matters can be resolved. I will vacate the hearing dates. Further orders for the conduct of the matter will need to be made to have the matter progress. 6. Prayer 6 of the amended motion seeks an order that the Applicants pay the Respondent's reasonable costs thrown away by reason of the amendments as assessed or agreed, pursuant to s 8.15(3) of the EPA Act. That order is made. 7. A further s 34 conciliation conference under the Land and Environment Court Act 1979 (NSW) appears warranted given the substantial progress made by the parties in resolving issues. Upon discussion as to the case management of the proceedings with the parties I determine that the matter ought be referred to the Registrar's list on 20 October 2023, unless the parties approach the Court prior by way of the Online Court to reserve a day before then for a further s 34 conciliation conference on a date convenient to the parties with preference for one of the previously listed hearing dates from 23 to 27 October 2023. Orders 1. In the Applicants' amended Notice of Motion filed in Court on 17 October 2023 the Court orders that: 1. The decision of Deputy Registrar Holm of 6 September 2023 is set aside pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW). 2. Pursuant to reg 38(4) of the Environment Planning and Assessment Regulation 2021 (NSW) the Applicants are granted leave to rely on the amended and supplementary plans and reports set out in Annexure A of the Applicants' amended Notice of Motion filed in Court on 17 October 2023. 3. The hearing commencing Monday 23 October 2023 is vacated. 4. Pursuant to s 8.15(3) of the Environment Planning and Assessment Act 1979 (NSW) the Applicants are to pay the Respondent's costs thrown away as agreed or assessed. 5. Matter adjourned to the Registrar's list on Friday 20 October 2023 with leave to approach the Online Court beforehand for a date for a section 34 conciliation conference with a preference for one of the previously listed hearing dates of 23-27 October 2023. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 October 2023