Roger Simpson v City of Sydney Council [2015] NSWLEC 1555

Land and Environment Court New South Wales

Medium Neutral Citation: Roger Simpson v City of Sydney Council [2015] NSWLEC 1555 Hearing dates: 30 October 2015 Date of orders: 30 October 2015 Decision date: 30 October 2015 Jurisdiction: Class 1 Before: Registrar Gray Decision: Leave granted to rely on amended plans Catchwords: AMENDED PLANS – whether leave should be granted – whether amendment has resulted in a new development Legislation Cited: Environmental Planning and Assessment Regulation 2000 Cases Cited: Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155 Ebsworth v Sutherland Shire Council (2005) NSWLEC 603 Hakim v Canada Bay City Council [2006] NSWLEC 746 Category: Consequential orders (other than Costs) Parties: Roger Simpson (Applicant) City of Sydney Council (Respondent) Representation: Counsel:

Solicitors: Colin Biggers & Paisley (Applicant) Council of the City of Sydney (Respondent) File Number(s): 10601 of 2015 Publication restriction: No

Judgment 1. REGISTRAR: This matter comes before me today on a Notice of Motion filed by the applicant on 23 October. That Notice of Motion is supported by the affidavit of Mr Phillips of 21 October 2015. The Notice of Motion seeks to rely on amended drawings or amended plans and therefore to amend the development application, the subject of the proceedings. The amended plans effectively remove the skylight and the terrace that were the subject of the original development application and replace them with proposed new casement windows. 2. In Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155, Jagot J framed two questions for the Court's consideration of whether leave should be granted to rely on amended plans. The first question is whether the power under cl 55 of the Environmental Planning and Assessment Regulations is available. In asking this question, Jagot J says, at [16]: I prefer to ask whether the development now proposed is an amendment or variation of the application recognising that amendment or variation may result in a change to the proposed development, but the Court has no jurisdiction to entertain an original application. 1. The second question for consideration outlined by Jagot J is whether, if the Court does have the power under cl 55, that power should be exercised. The respondent in these proceedings is of the view that the amended plans constitute a new development application. The respondent points to the description of the application contained on page 4 of the development application form submitted to the Council by the applicant. The description on the form is for an "attic level terrace".