Aesthete No. 9 Pty Limited v Blue Mountains City Council [2024] NSWLEC 1222

Land and Environment Court New South Wales

Medium Neutral Citation: Aesthete No. 9 Pty Limited v Blue Mountains City Council [2024] NSWLEC 1222 Hearing dates: 28 March 2024 Date of orders: 26 April 2024 Decision date: 26 April 2024 Jurisdiction: Class 1 Before: Adam AC Decision: The Court orders: (1) The Applicant is directed to apply to the Respondent under s 113(1) of the Environmental Planning and Assessment Regulation 2021 (2021 EPA Regulation) to amend the modification application made on 21 December 2021 by 1 May 2024. (2) The Respondent is to approve or reject the application to amend the modification application under s 113(4) of the 2021 EPA Regulation by 6 May 2024. (3) If the Applicant applies under (1) and the Respondent approves the application under (2), leave is granted to the Applicant to reopen its case on the modification application as amended. (4) The Respondent is directed to file written submissions on the deletion of condition 83 by 10 May 2024. (5) The modification application as amended will be heard and determined on the papers. (6) Leave is granted to the parties to relist the matter on 2 days' notice to apply for further or different directions. (7) The proposed modified Vegetation Management Plan (VMP) and arborist's report are to be filed by 1 May 2024 and the Respondent is directed to file written submissions regarding the proposed modified VMP and arborist's report by 10 May 2024. Catchwords: PRACTICE AND PROCEDURE – application to amend modification application before the Court – modification application heard but not finally determined – application to reopen case – procedure for making application to amend modification application – whether application must be made to consent authority – role of Court exercising the functions of a consent authority Legislation Cited: Conveyancing Act 1919 Environmental Planning and Assessment Act 1979, s 4.5 Land and Environment Court Act 1979, s 39 Environmental Planning and Assessment Amendment (Modifications) Regulation 2021 Environmental Planning and Assessment Regulation 2000, cll 121, 121A, 121B Environmental Planning and Assessment Regulation 2021, s 113 Cases Cited: Aesthete No. 9 Pty Limited v Blue Mountains City Council [2023] NSWLEC 1711 AQC Dartbrook Management Pty Limited v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 Duke Developments Australia 4 Pty Limited v Sutherland Shire Council [2021] NSWLEC 69 MacDonald v Mosman Municipal Council (1999) 105 LGERA 49; [1999] NSWLEC 215 Category: Procedural rulings Parties: Aesthete No. 9 Pty Limited (Applicant) Blue Mountains City Council (Respondent) Representation: Counsel: A Pickles SC and F Amirbeaggi (Solicitor) (Applicant) T Cork (Solicitor) (Respondent)