MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 6) [2011] NSWSC 1613

Supreme Court New South Wales

Medium Neutral Citation: MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 6) [2011] NSWSC 1613 Hearing dates: 22 March 2010 - 26 March 2010, 31 March 2010, 4 May 2010, 21 May 2010, 25 June 2010, 13 September 2010, 14 September 2010 - 17 September 2010, 20 September 2010 - 23 September 2010, 6 December 2010 - 7 December 2010 Decision date: 22 December 2011 Before: Johnson J Decision: (a) Verdict and judgment for the Defendant. (b) The Plaintiffs are to pay the Defendant's costs of the proceedings. (c) If any party seeks an order as to costs different to that contained in order (b) above, written application is to be made in that regard to Johnson J's Associate no later than 17 February 2012. Catchwords: CLAIM FOR DAMAGES - misfeasance in public office and negligence - Plaintiffs obtain development approval from Defendant to build apartment block at Nelson Bay - lengthy delay by Plaintiffs in commencing work on development - Defendant grants development approval for other apartment blocks in the vicinity in the meantime - Plaintiffs seek to increase height and density of project in light of adjoining developments - Plaintiffs make modification application under s.96 Environmental Planning and Assessment Act 1979 - s.96 application with Defendant for extended period - Plaintiffs at no stage appeal to Land and Environment Court under s.96(6) Environmental Planning and Assessment Act 1979 against deemed refusal - planning officer obtains independent legal advice whether s.96 application or fresh development application appropriate - planning officer follows advice that s.96 application was open - height and density issues - independent legal advice obtained whether Department of Planning concurrence required - Plaintiffs repeatedly provide Defendant with revised plans - Plaintiffs lobbying Councillors as well as dealing with planning officer - Plaintiffs in financial difficulties - mortgagee takes possession of development site - Defendant ultimately refuses s.96 application - Plaintiffs sue Defendant claiming damages by way of loss of chance to make a profit