David McElhone v Coordinated Logistics Pty Ltd and Ors [2023] NSWLEC 90

David McElhone v Coordinated Logistics Pty Ltd and Ors [2023] NSWLEC 90

The Court granted leave to amend because the proposed amendment raised an important issue concerning an alleged mandatory consideration, the applicants provided an adequate explanation for the timing based on recent observations, and the prejudice or inconvenience to Enzo Developments was not sufficient to refuse leave. The hearing dates were not vacated, and the applicants were also granted leave to rely on Mr McElhone's affidavit sworn 14 July 2023.

Jurisdiction
Australia
Judgment Date
24 July 2023
Procedural Posture
Class 4 Judicial Review Proceedings Concerning Development Consent / Notice of Motion for Leave to Further Amend an Amended Summons and Rely on Affidavit Evidence
Outcome
Notice of motion granted; leave to amend and leave to rely on affidavit granted; hearing dates not vacated.
Legal Topics
['leave to Amend' 'development Consent' 'mandatory Considerations' 'contaminated Land' 'prejudice From Late Amendment']
['practice and Procedure' 'planning and Environment' 'judicial Review'] ['leave to Amend' 'development Consent' 'mandatory Considerations' 'contaminated Land' 'prejudice From Late Amendment']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings Concerning Development Consent / Notice of Motion for Leave to Further Amend an Amended Summons and Rely on Affidavit Evidence

Legal Issues

  1. 1 ['Whether the applicants should be granted leave to amend their further amended summons to raise an alleged failure by the consent authority to comply with cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (NSW) and s 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 (NSW).' 'Whether the respondents, particularly Enzo Developments Pty Limited, would suffer prejudice from the proposed late amendment given the imminent substantive hearing.' 'Whether the applicants should be granted leave to rely upon the affidavit of David McElhone sworn 14 July 2023.' 'Whether the substantive hearing dates should be vacated.']

Ratio Decidendi

The Court granted leave to amend because the proposed amendment raised an important issue concerning an alleged mandatory consideration, the applicants provided an adequate explanation for the timing based on recent observations, and the prejudice or inconvenience to Enzo Developments was not sufficient to refuse leave. The hearing dates were not vacated, and the applicants were also granted leave to rely on Mr McElhone's affidavit sworn 14 July 2023.

Court Disposition

Notice of motion granted; leave to amend and leave to rely on affidavit granted; hearing dates not vacated.

Orders

  • ['The applicants are granted leave to amend their further amended summons in accordance with the draft attached as annexure "A" to the notice of motion filed 14 July 2023.' 'The applicants are granted leave to rely upon the affidavit of David McElhone sworn 14 July 2023.' 'Orders for the further conduct of the...