Sydney Tools Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1625

Land and Environment Court New South Wales

Medium Neutral Citation: Sydney Tools Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1625 Hearing dates: 21 November 2018 Date of orders: 22 November 2018 Decision date: 22 November 2018 Jurisdiction: Class 1 Before: Froh R Decision: (1) Leave is granted to amend the development application by relying on the plans and documents listed in the Index attached to the Applicant's Notice of Motion filed 12 November 2018. (2) The Applicant is to pay the Respondent costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. Catchwords: DEVELOPMENT APPLICATION: Notice of Motion – leave granted to amend development application Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Cases Cited: Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155; (2006) 145 LGERA 292 Category: Principal judgment Parties: Sydney Tools Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Solicitors: M Sonter, Mills Oakley (Applicant) M Cottom, Pikes & Verekers Lawyers (Respondent) File Number(s): 2017/371724 Publication restriction: No

EX TEMPORE Judgment 1. REGISTRAR: These proceedings came before me on a Notice of Motion (Motion) filed on 12 November 2018 and heard on 21 November 2018. 2. The affidavit of Mr Matt Sonter affirmed on 12 November 2018 was read in support of the Motion. The Motion seeks to amend the development application the subject of the appeal, by (among other things) amending the area of the development site to include an area referred to by both parties as "Unit B". 3. It has been put to me by the Respondent that leave should not be granted as the amendments to the development application amount to a new application and, accordingly, are outside my power under cl 55 of the Environmental Planning and Assessment Regulation 2000 (Regulation). 4. The Applicant contends that the proposed amendment is within power as the development that is currently before the Court is for a warehousing and distribution centre and the inclusion of Unit B and the other proposed amendments to the development application do not change that. 5. Over the course of the hearing, the parties ultimately put to me that whether the amendment within my power was one of fact and degree. 6. I have relied on the principles set out by her Honour Jagot J when considering cl 55 of the Regulation in Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155; (2006) 145 LGERA 292, being that the power to amend a development application is both "beneficial and facultative" and should be afforded "the widest interpretation which its language will permit". 7. As such, I have decided to grant the Applicant leave to amend its development application by relying on the plans and documents list in the index attached to the Motion.