Nice Dirt Pty Limited v Leichhardt Council [2005] NSWLEC 83

Land and Environment Court of New South Wales

CITATION : Nice Dirt Pty Limited v Leichhardt Council [2005] NSWLEC 83

Nice Dirt Pty Ltd (Appl) PARTIES : Leichhardt Council (Resp)

FILE NUMBER(S) : 10992 of 2004

CORAM: McClellan CJ

Development Application :- Amended plans Whether the modification proposed disqualified the application from proceeding KEY ISSUES: COSTS: unreasonable costs in light of the need for re-advertisement and reassessment of the proposal Not raised by the Council

DATES OF HEARING: 27 January 2005 EX TEMPORE JUDGMENT DATE : 01/27/2005

M-L Taylor (Solicitor - Appl) Norman Waterhouse Incorporating Taylor Kelso (Sols - Appl)

LEGAL REPRESENTATIVES:

G Green (Solicitor - Resp) Pike Pike & Fenwick (Sols - Resp)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

McCLELLAN J

THURSDAY 27 JANUARY 2005

10992/04 NICE DIRT PTY LTD v LEICHHARDT COUNCIL

JUDGMENT - on notice of motion to seek leave to amend plans 1 HIS HONOUR: This matter comes before me this morning out of a concern that the applicant seeks to amend the application in a manner which may not allow the present appeal to proceed. 2 The circumstances are that an application has been lodged with the Council for the development of three houses with off-street car parking. A matter was referred to a court expert who has apparently offered the opinion that the development would be preferable if the car parking, instead of being at grade and in front of the proposed dwellings, could be placed beneath the dwellings in excavation. The applicant has prepared amended plans to provide for a modification of the proposal to allow this to occur. 3 The Council, as I understand it, was unsure as to whether or not this constituted an amendment which meant that the development was substantially the same as that which was originally proposed and thus the matter has come before me this morning. 4 I am satisfied that having regard to the fact that the amendment seeks merely to provide for the car parking to be below the dwellings, and otherwise the development conforms to that which was originally proposed, the modification proposed does not disqualify the application from proceeding. 5 I am informed that under the Council's Development Control Plan the modified plans must be advertised and the local people given an opportunity to express a view in relation to it. The applicant accepts this to be the position. In these circumstances, if I was in doubt as to whether or not the application was substantially the same my doubts would be resolved in favour of allowing the amendment to be accepted by reason of the fact that I can see no practical consequence of not allowing that to occur, in the circumstances where it is accepted that notification is required. 6 I also understand that the applicant has made inquiry of the neighbour who might be most affected by the amendment because of the location of the driveway adjacent to that person's dwelling. I am informed, but, of course, this person will have an opportunity to formally put their view before the Court, that those persons prefer the modification because of the fact that it relieves, to a degree, the proximity of the proposed building from their boundary. However, those are all matters which will need to be considered after the amendment has been notified. 7 The Council has not indicated to me that it seeks any order for costs if the amended plans can be relied upon and, accordingly, unless an application is made I need say nothing about it. However, it is commonly brought to my attention that councils are concerned that by the bringing of amendments after an application has been lodged councils may suffer unreasonable costs burdens in light of the need for re-advertisement or for reassessment of the proposal. However, unless an application is made there is, as I have indicated, no need for me to say anything about that matter, although I should mark it lest there be later complaint. **********