Howard-Jones v Leichhardt Council [2015] NSWLEC 1309

Land and Environment Court New South Wales

Medium Neutral Citation: Howard-Jones v Leichhardt Council [2015] NSWLEC 1309 Hearing dates: 30 July 2015 Decision date: 05 August 2015 Jurisdiction: Class 1 Before: O'Neill C Decision: The Applicant's Notice of Motion dated 28 July 2015 seeking leave to amend the application is dismissed. Catchwords: NOTICE OF MOTION: motion to amend the application; whether amended architectural plans constitute a new application; whether the Court's discretion should be exercised in favour of the applicant. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Waite v Blacktown City Council [2004] NSWLEC 157 Hakim v Canada Bay City Council [2006] NSWLEC 746 Category: Principal judgment Parties: David & Annaleise Howard-Jones (Applicant) Leichhardt Municipal Council (Respondent) Representation: Counsel: Mr G. McKee solicitor (Applicant) Mr M. Bonanno solicitor (Respondent) Solicitor: McKees Legal Solutions (Applicant) Leichhardt Council (Respondent) File Number(s): 10374 of 2015

Judgment 1. COMMISSIONER: Appeal No. 10374 of 2015 is an appeal against the refusal of Development Application No. D/2015/98 by Leichhardt Council for alterations and additions to an existing dwelling at 5 Phoebe Street, Balmain. This judgment deals with the applicant's Notice of Motion dated 28 July 2015 to amend the application in respect of the appeal. 2. Attached to the applicant's Notice of Motion is a set of architectural plans identified as Revision E and dated 23.7.15 and a schedule of amendments to architectural plans for each of the five issues of the plans. The Notice of Motion seeks an order that the applicant be granted leave to rely on the Revision E set of architectural plans. Leichhardt Council (the Council) opposes leave being granted on the basis that the set of architectural plans attached to the applicant's Notice of Motion constitute an original development; the proposal in the plans attached to the Notice of Motion does not address the Council's contentions and raises new issues. Mr Mark Bonanno, the Council's solicitor, filed an affidavit outlining the communications between the applicant and Council and attached to the affidavit are copies of emails exchanged between the parties. 3. The appeal was set down for mandatory conciliation and arbitration under s 34AA of the Land and Environment Court Act 1979 (LEC Act), on 8 July, 2015. On 8 July, following the site view, the hearing of evidence from resident objectors and the commencement of the conciliation at Court, the conciliation was adjourned until Monday 3 August, 2015, for the applicant to provide Council with amended plans, consistent with a set of plans presented by the applicant at the conciliation conference, for the purpose of the further joint conferencing of the experts and for the Council to notify the objectors of the amended proposal.