Land and Environment Court New South Wales Medium Neutral Citation: Ferral-Smith v Villanueva [2011] NSWLEC 204 Hearing dates: 11 November 2011 Decision date: 11 November 2011 Jurisdiction: Class 4 Before: Biscoe J Decision: Motion to amend summons dismissed. Catchwords: PRACTICE AND PROCEDURE:- whether amendment to summons should be granted - utility of amending summons where invalidity of development consent conceded by Third Respondent. Legislation Cited: Hornsby Shire Local Environmental Plan 1994, cl 15 Category: Procedural and other rulings Parties: Rodney James Ferral-Smith (Applicant) Allan Miralles Villanueva (First Respondent) Aileen Lariza Villanueva (Second Respondent) Hornsby Shire Council (Third Respondent) Representation: COUNSEL: Ms L Byrnes (Applicant) Mr J Lazarus (Third Respondent) SOLICITORS: Storey & Gough (Third Respondent) File Number(s): 40881 of 2011 EX TEMPORE Judgment 1In these proceedings the applicant claims a declaration that a development consent for a dwelling - house in a community title subdivision granted by the third respondent, Hornsby Shire Council, is invalid on the sole ground that it was granted in breach of cl 15 of the Hornsby Local Environmental Plan 1994. The Council consents to that declaration being made. Accordingly, the matter has been listed as a short matter before me next Tuesday in order to satisfy the court that the declaration should be made. The first and second respondents, the recipients of the consent, have filed a submitting appearance. 2I am now dealing with a notice of motion by the applicant seeking to amend the summons by adding : (a)as an additional ground of challenge to validity, that the development consent was by a council officer without delegated power to grant such consent; (b)a prayer for a declaration that a council resolution of 2 November 2005 is valid. That resolution is to the effect that all development applications for dwelling houses in the subject community title subdivision be referred to the council for determination; (c)a prayer for an order restraining the council for deciding any development applications on the lots created by a 2005 subdivision development approval in respect of certain land at Berowra otherwise than in accordance with that resolution. 3About three weeks ago the applicant gave notice to the council that it wished to raise the delegation point as a second ground of challenge to the validity of a development consent. For present purposes it is unnecessary to determine the precise content of the communications between the applicant and the council in this regard (as to which there seems to be some disagreement). 4The respondent submitted that it is futile to add the delegation point as a further ground of challenge to the validity of the development consent because the parties have agreed that the development consent is invalid on the existing ground. Next week's hearing before the Court is only to comply with the principle that the Court must be satisfied as to invalidity before making a declaration. The respondent said that if the Court were not so satisfied at the hearing, it would then not stand in the way of the applicant amending to add the delegation point as the second ground of challenge to validity. 5An affidavit of Mr Ferral - Smith, read in support of the notice of motion, states that the relevance of the delegation point is that the first and second respondents have since lodged another development application now supported by a SEPP1 objection and that if the 2005 council resolution is valid, the development application will have to go to a council meeting to be determined. 6That issue was defused in an affidavit of the council's solicitor, Mr Pickup, filed today, in which he states "I advise that the new DA which has been lodged by the First and Second Respondents and which is supported by a SEPP1 objection, will have to be determined by a full Council Meeting having regard for the fact that a Red sticker has been placed on it by one of the Councillors". 7In light of Mr Pickup's evidence, the applicant no longer presses to amend the summons to add the delegation point as the second ground of challenge to validity. 8However, the applicant still presses to amend the summons in the further ways referred to at [2] above, namely by prayers for a declaration that the council resolution is valid and an injunction restraining the council from deciding any development applications on certain lots otherwise than in accordance with the 2005 resolution. The applicant is unable to cast light on whether in fact there are any such further development applications in existence. The applicant, however, says that the issue which he seeks to raise is or may be of some importance to the determination of any future development application on the subdivision lots: see [2 (c)] above. 9Even assuming that to be so, I do not think that I ought to allow the present proceedings to be used as the vehicle for agitating the issue. In the first place, it is unnecessary for the resolution of the question whether the challenge to the subject development consent is invalid, indeed the applicant no longer presses the delegation point as a second ground of challenge to validity. Secondly, it is no longer of relevance to the pending development application by the first and second respondents, which was the relevance perceived by Mr Ferral - Smith, because the council has now accepted that that application will have to be determined by a full council meeting. Thirdly, the future residual basis on which the applicant suggests that it may have relevance (see [8] above) seems to require some factual investigation to establish that it is not hypothetical and lies outside the proceedings as presently constituted. 10Given those considerations and the proximity of the hearing, I decline to grant leave to amend the summons. Accordingly, the notice of motion is dismissed. Costs are reserved. Amendments 22 November 2011 - typographical errors. Amended paragraphs: [8] and [9] 08 December 2011 - typographical errors Amended paragraphs: 8 and 9 (paragraph references) 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: 08 December 2011