Zheng, Xiao Ping v Hurstville City Council [2013] NSWLEC 1183

Land and Environment Court New South Wales

Medium Neutral Citation: Zheng, Xiao Ping v Hurstville City Council [2013] NSWLEC 1183 Hearing dates: 26, 27 September 2013 Decision date: 27 September 2013 Jurisdiction: Class 1 Before: Hussey C Decision: Motion to dismiss proceedings dismissed. Application to vacate allowed. Application to amend adjourned. Catchwords: Practice and Procedure - Notice of Motion for dismissal of proceedings and concurrent application to vacate and amend development application Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Wakim v Tadros [2011] NSWSC 308 Category: Procedural and other rulings Parties: Zheng, Xiao Ping (Applicant)

Hurstville City Council (Respondent) Representation: Mr K Webber (Applicant)

Mr M Cotton (Respondent) File Number(s): 10162 of 2013

Judgment

Background 1This matter relates to a Notice of Motion for the s 97 appeal proceedings for a property at 4 Clarendon Road, Peakhurst to be dismissed. The appeal was lodged against Council's refusal of a development application for a four-unit with basement car parking development under State Environmental Planning Policy (Affordable Rental Housing) 2009. 2The appeal commenced by way of a s 34 Conference in May 2013 and consideration was given to the threshold issue of flooding and associated planning issues of overdevelopment, character and amenity and compliance with BCA provisions. 3The s 34 conference has been adjourned on several occasions to allow the Applicant to arrange and complete the 2D modelling of the catchment in order to assess the flooding impacts. Directions were given regarding the timetable for completion of the outstanding information with the matter being re-listed for hearing on 27 September 2013. 4Just prior to this it became apparent that the flood study had been delayed and subsequently the Applicant was intending to amend the application in response to the flooding results. Following the filing of the subject Notice of Motion for dismissal, at the commencement of the listed hearing on 27 September, the Applicant filed Notices of Motion for the hearing date to be vacated and to amend the application. Accordingly, these applications had been considered together. In this regard, I note that the Applicant somewhat belatedly agreed to payment of costs thrown away.