Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153

Reported Decision : 169 LGERA 45

Land and Environment Court of New South Wales

CITATION : Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153

PARTIES : Futurespace Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)

FILE NUMBER(S) : 10513 of 2009

CORAM: Pepper J

KEY ISSUES: SECTION 97 APPEAL :- application to amend development application in class 1 appeal - leave granted to amend development application - whether amendments "minor" - amendments more than minor - applicant ordered to pay respondent's costs under s97B of the Environmental Planning and Assessment Act

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s97B

Cachia v Manly Council (No 2) [2009] NSWLEC 1107 CASES CITED: Coshott v Woollahra Council [1996] NSWLEC 256 Groeneveld v Wollongong City Council [2009] NSWLEC 149 Groeneveld v Wollongong City Council [2009] NSWLEC 1226

DATES OF HEARING: 7 September 2009

EX TEMPORE JUDGMENT DATE : 7 September 2009

J Hones (Applicant) Hones La Hood Lawyers (Applicant) LEGAL REPRESENTATIVES: J Robson SC (Respondent) Deacons Lawyers (Respondent)

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PEPPER J

7 September 2009

09/10513 Futurespace Pty Ltd v Ku-ring-gai Council

EX TEMPORE JUDGMENT Introduction 1 HER HONOUR: This is a notice of motion seeking leave by the applicant to reply upon the amended plans by Futurespace Pty Ltd, being drawings A000-B; A001-B; A002-B; A100-B; A101-B; A102-B; A103-B; A104-B; A105-B; A200-B; A201-B; A301-B; A400-B; A401-B and the landscape plan prepared by iSpace Landscape Architecture being drawing number 38.09/064 "A" (together, "the amended plans"). 2 The motion is moved upon in the context of a class 1 appeal filed 30 July 2009, against the deemed refusal to grant development consent to an application for the demolition of three existing structures and the construction of a residential flat building with 27 units, basement parking and associated works ("the proposed development") at Lots 4, 5 and 6 in DP 6353, otherwise known as 7-11 Turramurra Avenue, Turramurra ("the site"). 3 The respondent, Ku-ring-gai Council ("the council"), does not oppose the granting of leave and submits that the amendments are appropriate. 4 The Court agrees, and accordingly, leave is granted to rely upon the amended plans. 5 The issue in this motion is whether the proposed amendments as contained in the amended plans are "minor" for the purpose of s 97B of the Environment and Planning Assessment Act 1979 ("the EPAA"). If they are not, then that provision states that irrespective of the utility and appropriateness of the amendments, the applicant must in effect pay the council's costs incurred in respect of the assessment of the original development application. Somewhat unusually in respect of an awards of costs the Court has no discretion but to award costs against the applicant if the Court forms the view that the amendments are other than "minor". 6 It therefore comes as no surprise that the applicant submits that the amendments are minor, whereas the council submits that they are not. Legislative Background 7 Section 97B of the EPAA states as follows (emphasis added): 97B Costs payable if amended development application filed (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application ( other than to make a minor amendment ).