Blackmore Design Group Pty Limited v Manly Council [2014] NSWLEC 164

Land and Environment Court New South Wales

Medium Neutral Citation: Blackmore Design Group Pty Limited v Manly Council [2014] NSWLEC 164 Hearing dates: 9 October 2014 Decision date: 14 October 2014 Jurisdiction: Class 1 Before: Biscoe J Decision: (1) The Court answers the preliminary separate question as follows: The development application seeks consent for "residential accommodation" which cannot be characterised as "shop top housing" and is therefore prohibited on land within Zone B2 Local Centre pursuant to the provisions of the Manly Local Environmental Plan 2013. (2) Grant leave to the applicant to amend the development application by relying on amended plans A0.01 issue D and A1.02 issue D. (3) The applicant is to pay the respondent's costs of the applicant's notice of motion for leave to amend filed on 11 September 2014. (4) The applicant is to pay the respondent's costs that are thrown away as a result of the applicant amending the development application. (5) The exhibits may be returned. Catchwords: DEVELOPMENT APPEAL - separate question whether development application seeks consent for "residential accommodation" which cannot be characterised as "shop top housing" and is therefore prohibited on land within Zone B2 Local Centre pursuant to the provisions of Manly Local Environmental Plan 2013 - whether leave should be granted to amend development application to overcome prohibition.

COSTS - of separate question - whether applicant should pay costs of separate question and, if so, whether on ordinary basis or indemnity basis having regard to its conduct and Calderbank principles -applicant to pay costs relating to amendments. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 91A(2), 97B Water Management Act 2000 s 91(3) Environmental Planning and Assessment Regulation 2000 cl 55 Land and Environment Court Rules r 3.7 Manly Development Control Plan 2013 Manly Local Environmental Plan 2013 Dictionary Cases Cited: Abret v Wingecarribee Shire Council [2011] NSWCA 107, (2011) 180 LGERA 343 AF Concrete Pumping Pty Ltd v Ryan & Ors [2014] NSWCA 346 Al Amanah College Inc v Minister for Education and Training (No 4) [2012] NSWLEC 26 Association for Better Living and Education Inc v Wyong Shire Council [2014] NSWLEC 96 Blackmore Design Group Limited v Manly Council [2014] NSWLEC 151 Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147, (2013) 201 LGERA 116 Calderbank v Calderbank [1975] 3 All ER 333 Chamwell Pty Ltd v Strathfield Municipal Council [2007] NSWLEC 114, (2007) 151 LGERA 400 Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd (No 2) [2012] NSWCA 217 Hanna v Council of the City of Ryde [2010] NSWLEC 1094 Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121 Maule v Liporoni [2002] NSWLEC 25, (2002) 122 LGERA 140 Monaghan v Holroyd City Council [2009] NSWLEC 112, (2009) 167 LGERA 321 Pyntoe Pty Ltd v Valuer-General of NSW (No 2) [2012] NSWLEC 231 Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155, (2006) 145 LGERA 292 Reysson Pty Ltd v Roads and Maritime Services (No 2) [2012] NSWLEC 91 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Stanton Dahl Architects v Penrith City Council [2010] NSWLEC 156 The Village McEvoy Pty Ltd v Council of the City of Sydney [2009] NSWLEC 1214 Waterland Blue Mountain Natural Water Pty Ltd v Blue Mountains City Council [2006] NSWLEC 537 Williams v Spautz [1992] HCA 34, (1992) 174 CLR 509 Category: Separate question Parties: Blackmore Design Group Limited (Applicant) Manly Council (Respondent) Representation: COUNSEL: J Reid (Applicant) T To (Respondent) SOLICITORS: Sattler & Associates (Applicant) Maddocks (Respondent) File Number(s): 10551/14