Samcourt Pty Ltd v Inner West Council [2017] NSWLEC 1691

Land and Environment Court New South Wales

Medium Neutral Citation: Samcourt Pty Ltd v Inner West Council [2017] NSWLEC 1691 Hearing dates: 1 December 2017 Date of orders: 04 December 2017 Decision date: 04 December 2017 Jurisdiction: Class 1 Before: Froh R Decision: The Court orders: 1. Notice of Motion is dismissed Catchwords: AMENDED PLANS – whether leave should be granted – whether amendment has resulted in a new development Legislation Cited: Environmental Planning and Assessment Regulation 2000, cl 55 Cases Cited: Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155 Hakim v Canada Bay City Council [2006] NSWLEC 746 Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 Category: Principal judgment Parties: Samcourt Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: Turvey To (Applicant)

Solicitors: Marc Jaku (Applicant) Mark Bonanno (Respondent) File Number(s): 2017/00126074 Publication restriction: No

Judgment 1. This matter comes before me on a Notice of Motion filed by the applicant on 27 November 2017. That Notice of Motion is supported by the affidavit of Mr Jaku affirmed on 27 November 2017. 2. The Notice of Motion seeks to rely on amended plans proposing to raise the overall height of the development by up to 75cm and change the proportion of commercial and residential use across the site. 3. The Applicant submits that these amendments are responsive to the expert reports filed by the parties' engineers and town planners, respectively. 4. The amendment proposed to the overall height of the building is uncontroversial. 5. However, the respondent does not agree with the applicant's submissions and submits that the amendment to the proportion of commercial units to residential units is so great that the change constitutes a new development application. 6. The amendment proposed by the Applicant would see that development change from 14 commercial units and 17 residential units across the site to 22 commercial units and 10 residential units across the site. This amendment equates to increasing the amount of commercial space across the development from approximately 22.5% commercial use to approximately 60.4% commercial use.