Land and Environment Court New South Wales Medium Neutral Citation: Samcourt Pty Ltd v Inner West Council (No 2) [2017] NSWLEC 169 Hearing dates: 7 December 2017 Date of orders: 07 December 2017 Decision date: 07 December 2017 Jurisdiction: Class 1 Before: Sheahan J Decision: See paragraph [10] Catchwords: PRACTICE AND PROCEDURE: Review of a Registrar's decision – amendment of development proposal – vacation of hearing dates – costs. Legislation Cited: Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Marrickville Local Environmental Plan 2011 Uniform Civil Procedure Rules 2005 Cases Cited: Groeneveld v Wollongong City Council (2009) 168 LGERA 260 Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292 Samcourt Pty Ltd v Inner West Council [2017] NSWLEC 1691 Category: Procedural and other rulings Parties: Samcourt Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: Mr T To, barrister (Applicant) Mr J Strati, solicitor (Respondent) Solicitors: Jaku Legal (Applicant) Inner West Council (Respondent) File Number(s): 2017/126074 EXTEMPORE Judgment 1. The Registrar refused leave for the applicant to rely upon amended plans and documents. 2. The applicant contends that the amendments sought are responsive to joint expert reports, and Council's position regarding the proposal, and seeks review of the Registrar's decision: Samcourt Pty Ltd v Inner West Council [2017] NSWLEC 1691. 3. An acknowledged consequence of success in this review application is that the hearing next week will need to be vacated, but the applicant contends that the amendment will likely result in agreement on many issues regarding its mixed use development, and a consequent saving of hearing time. 4. Council today agrees to the orders sought by the applicant. 5. The review should not be granted by consent, but it is not necessary to find material error. The Court must be satisfied, essentially, that it is in the interests of justice, and otherwise "reasonable", to depart from the Registrar's decision: see Uniform Civil Procedure Rules 2005 Rule 49.19; Groeneveld v Wollongong City Council (2009) 168 LGERA 260 at [12-13], and the many cases that have followed it. 6. I accept Mr To's submission that the Registrar focussed on only one effect of the changes, to hold that the amendment was really a new application: Radray Constructions Pty Ltd v Hornsby Shire Council ("Radray") (2006) 145 LGERA 292. Her focus was on an effective change in the characterization of the purpose of the development from "shop top housing" to "largely commercial development". Such a submission was not put to her by Council, and she did not raise that issue during the hearing such that the parties could respond. 7. If the refusal of leave, and the hearing dates, are to stand, the Court will be deciding an application which the applicant is not keen to pursue, and the Council will continue to resist. 8. It is at least arguable that the applicant was denied procedural fairness by the Registrar, and/or that she wrongly construed the applicant's proposal (as amended in September following the amendment of the applicable Local Environmental Plan in June to prohibit "shop top housing"), and/or that the unintended consequences of her decision are in some ways "perverse". 9. It is not inconsistent with Radray, and the beneficial and facultative qualities of the amendment provision, and it is consistent with the "just, quick and cheap" injunctions of the Civil Procedure Act 2005, for the Court to accede to the now joint position of the parties. 10. I will publish these reasons, but I now make the following orders, in accordance with the Short Minutes of Order jointly submitted by the parties: 1. The orders made by the Registrar on 4 December 2017 are set aside. 2. Leave is granted to the Applicant to rely on the following amended plans and documents: Drawing No. Drawing Name Date A-1.1 W Basement 17 November 2017 A-1.2 Y Ground Floor 16 November 2017 A-1.3 Y First Floor 16 November 2017 A-1.4 X Second Floor 16 November 2017 A-1.5 X Third Floor 16 November 2017 A-1.8 H GFA Calculations 26 October 2017 A-2.0 I Proposed Elevations 17 November 2017 A-5.0 M Proposed Sections 16 November 2017 A-5.1 J Proposed Sections 16 November 2017 A-7.10-01 D Shadow Diagrams – June 21 – 9am existing 28 November 2017 A-7.10-02 D Shadow Diagrams – June 21 –9am proposed 28 November 2017 A-7.10-03 B Shadow Diagrams – June 21 –10am existing 28 November 2017 A-7.10-04 B Shadow Diagrams – June 21 –10am proposed 28 November 2017 A-7.10-05 B Shadow Diagrams – June 21 –11am existing 28 November 2017 A-7.10-06 B Shadow Diagrams – June 21 –11am proposed 28 November 2017 A-7.10-07 D Shadow Diagrams – June 21 –12pm existing 28 November 2017 A-7.10-08 D Shadow Diagrams – June 21 –12pm proposed 28 November 2017 A-7.10-09 B Shadow Diagrams – June 21 –1pm existing 28 November 2017 A-7.10-10 B Shadow Diagrams – June 21 –1pm proposed 28 November 2017 A-7.10-11 B Shadow Diagrams – June 21 –2pm existing 28 November 2017 A-7.10-12 B Shadow Diagrams – June 21 –2pm proposed 28 November 2017 A-7.10-13 D Shadow Diagrams – June 21 –3pm existing 28 November 2017 A-7.10-14 D Shadow Diagrams – June 21 –3pm proposed 28 November 2017 SV1 D Solar access – Sun view diagrams – June 21 – 9.00am Existing 28 November 2017 SV2 D Solar access – Sun view diagrams – June 21 – 10.00am Existing 28 November 2017 SV3 D Solar access – Sun view diagrams – June 21 – 11.00am Existing 28 November 2017 SV4 D Solar access – Sun view diagrams – June 21 –12.00pm Existing 28 November 2017 SV5 D Solar access – Sun view diagrams – June 21 – 1.00pm Existing 28 November 2017 SV6 D Solar access – Sun view diagrams – June 21 – 2.00pm Existing 28 November 2017 SV7 D Solar access – Sun view diagrams – June 21 – 3.00pm Existing 28 November 2017 SV8 D Solar access – Sun view diagrams – June 21 – 9.00am Proposed 28 November 2017 SV9 D Solar access – Sun view diagrams – June 21 – 10.00am Proposed 28 November 2017 SV10 D Solar access – Sun view diagrams – June 21 – 11.00am Proposed 28 November 2017 SV11 D Solar access – Sun view diagrams – June 21 – 12.00pm Proposed 28 November 2017 SV12 D Solar access – Sun view diagrams – June 21 – 1.00pm Proposed 28 November 2017 SV13 D Solar access – Sun view diagrams – June 21 – 2.00pm Proposed 28 November 2017 SV14 D Solar access – Sun view diagrams – June 21 – 3.00pm Proposed 28 November 2017 Document Date Updated SEPP 65 Report 29 November 2017 Updated BASIX Certificate 4 December 2017 1. The hearing dates of 12, 13 and 14 December 2017 are vacated. 2. The Applicant is to pay the Respondent's costs of the Notice of Motion dated 27 November 2017, seeking leave to rely on amended plans, in the sum of $2,750 (inclusive of GST) within 28 days of receipt of an invoice. 3. Pursuant to s 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs that are thrown away as a result of amending the development application, as agreed or assessed. 4. The Court grants leave to the parties to approach the Registrar by electronic means with a view to her setting a new hearing date and giving further necessary directions. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 December 2017