Kennedy v Stockland Developments Pty Ltd (No 5) [2012] NSWLEC 21

Land and Environment Court New South Wales

Medium Neutral Citation: Kennedy v Stockland Developments Pty Ltd (No 5) [2012] NSWLEC 21 Hearing dates: 14 February 2012 Decision date: 14 February 2012 Jurisdiction: Class 4 Before: Pepper J Decision: Application to amend dismissed Catchwords: PRACTICE AND PROCEDURE - late application to amend raising new factual and legal issues - no prejudice to the applicant if amendments not allowed - prejudice to the respondent if amendments allowed - no explanation for the delay - application dismissed Legislation Cited: Civil Procedure Act 2005, ss 56, 57, 58, 64 Environmental Planning and Assessment Act 1979, s 76A Cases Cited: Aon Risk Services Ltd & Australian National University [2009] HCA 27; (2009) 239 CLR 175 Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 144 Kennedy v Stockland Developments Pty Ltd (No 3) [2011] NSWLEC 249 Kennedy v Stockland Developments Pty Ltd (No 4) [2012] NSWLEC 3 Vilro Pty Ltd and Roads and Traffic Authority of NSW [2010] NSWLEC 141 Category: Procedural and other rulings Parties: Mr Roy "Dootch" Kennedy (Applicant) Stockland Developments Pty Ltd (Respondent) Representation: Mr A Oshlack (Applicant) Mr J E Robson SC with Mr H El-Hage (Respondent) Herbert Geer (Respondent) File Number(s): 40977 of 2011

Extempore Judgment

Late Application to Amend 1This is an application by Mr Roy "Dootch" Kennedy, the applicant, on behalf of the Sandon Point Aboriginal Tent Embassy, to amend his points of claim and amended summons. 2The proposed amendments were served on the respondent, Stockland Developments Pty Ltd ("Stockland"), late. Specifically, they were served on Stockland the night before this matter was due to commence a three-day hearing. The matter was commenced on 27 October 2011 and set down for hearing on 11 November 2011. 3The amendments effectively seek to raise the following new claims in paragraph (1)(i) of the points of claim in the pleadings (with cognate changes to the amended summons), namely, that: (a) Stockland has undertaken work to establish a temporary pathway without development consent under the Environmental Planning and Assessment Act 1979 ("the EPAA"); (b) Stockland has breached s 76A of the EPAA by establishing the temporary pathway; (c) Stockland has undertaken works to establish the temporary pathway on a separate lot of land that has not previously been the subject of these proceedings as pleaded, namely, Lot 517 DP1156416 ("Lot 517") and that these works have been conducted without development consent. Lot 517 is owned by Wollongong City Council ("the council"), which is not a party to these proceedings; and (d) that the works described in the points of claim have occurred on Lot 517, absent consent.