Zheng v Hurstville City Council [2014] NSWLEC 1059

Land and Environment Court New South Wales

Medium Neutral Citation: Zheng v Hurstville City Council [2014] NSWLEC 1059 Hearing dates: 3 December 2013 Decision date: 04 April 2014 Jurisdiction: Class 1 Before: Hussey C Decision: Amendments considered minor and costs not justified Catchwords: Costs: Application for costs pursuant to s97B of the Environmental Planning and Assessment Act 1979 Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Futurespace Pty Ltd v Ku- ring-gai Council [2009] NSWLEC 153 S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 167 Category: Principal judgment Parties: Xiao Ping Zheng (Applicant)

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

Mr M Cottom (Respondent) Wilshire Webb Staunton Beattie Lawyers (Applicant)

HWL Ebsworth Lawyers (Respondent) File Number(s): 10162 of 2013

Judgment

Background 1This matter concerns whether costs under s 97B of the Environmental Planning and Assessment Act 1979 should be payable to the Respondent in respect of amended plans to which leave was granted on 29 November 2013 to rely upon. The original development proposed a four unit (affordable) housing development at 4 Clarendon Road, Peakhurst. 2The amendments mainly arose because the site is subject to flooding and the Applicant initially provided a two-dimensional flood study in support of the application. However during the appeal process the Applicant undertook a further three-dimensional flood study to more accurately estimate likely flooding impacts. Consequently, in response to this updated flood study the following amendments were made: 1 The stairs from the basement to the ground floor have charged and a lift added. 2 The setback from the rear boundary (north) to building at Ground floor level has been reduced by 0.75m. 3 The basement car park has been reduced on its northern end by 3.5m with loss of 1 car space. 4 Car spaces 2 and 3 have been combined to facilitate one disabled access car space. 5 The finished floor level of the development has been increased by 0.9m (FFL 14.70 to 15.60). This increase in height necessitated the addition of steps to the Court yards of units 2, 3 and 4. 6 Alterations to the stormwater plan. 3When leave was granted on 29 November to rely upon the amended plans, the question of costs was reserved. Any cost order is subject to the following provisions: 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). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application. (3) The regulations may provide for circumstances in which subsection (2) does not apply. (4) This section has effect despite the provisions of any other Act or law.