Cavcorp Australia Pty Ltd v Hunters Hill Council [2021] NSWLEC 1392

Cavcorp Australia Pty Ltd v Hunters Hill Council [2021] NSWLEC 1392

The Court had power to allow amendment because this was a direct s 4.55(8) Class 1 application and the initiating process was a document in the proceedings. The modified development remained substantially the same as the original dwelling house and garage consent. The northern concrete slab should not be retained because vegetation previously existed there, likely soil pockets and rock fissures remained beneath it, removal would improve root growth, reduce hard-surface runoff and better meet the HHLEP 2012 and HHDCP 2013 landscaping objectives; sandstone boulder retaining structures were preferable to timber sleepers. The proposed western boundary landscaping was acceptable for...

Jurisdiction
Australia
Judgment Date
06 July 2021
Procedural Posture
Class 1 Application Under S 4.55(8) of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent Granted by the Court / Principal Judgment Following Hearing; Directions Made for Agreed Amended Plans and Conditions Before Final Orders
Outcome
Directions made for the Applicant to file agreed amended plans and conditions; liberty to apply granted.
Legal Topics
['modification Application to Regularise Works Carried Out Otherwise Than in Accordance With Consent' 'amendment of a Modification Application Made Directly to the Court' 'landscaped Area and Garden Suburb Character' 'concrete Slab Beneath Proposed Landscaping' 'construction Over Easement for Services and Right of Carriageway' 'substantially the Same Development']
['planning and Environment' 'development Consent Modification' 'civil Procedure' 'property and Easements'] ['modification Application to Regularise Works Carried Out Otherwise Than in Accordance With Consent' 'amendment of a Modification Application Made Directly to the Court' 'landscaped Area and Garden Suburb Character' 'concrete Slab Beneath Proposed Landscaping' 'construction Over Easement for Services and Right of Carriageway' 'substantially the Same Development']

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Procedural Posture

Class 1 Application Under S 4.55(8) of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent Granted by the Court / Principal Judgment Following Hearing; Directions Made for Agreed Amended Plans and Conditions Before Final Orders

Legal Issues

  1. 1 ['Whether the Court had power under s 64 of the Civil Procedure Act 2005 to permit amendment of a modification application made directly to the Court under s 4.55(8) of the Environmental Planning and Assessment Act 1979.' 'Whether the development as modified was substantially the same development as the development for which consent was originally granted.' 'Whether the northern concrete slab should be retained beneath proposed landscaping and whether the retaining structures should be timber sleepers or sandstone boulders.' 'Whether the western stairs and landing should be removed for landscaping reasons.' 'Whether substantial structures constructed over the easement for services and right of carriageway should be approved as part of the modification application.']

Ratio Decidendi

The Court had power to allow amendment because this was a direct s 4.55(8) Class 1 application and the initiating process was a document in the proceedings. The modified development remained substantially the same as the original dwelling house and garage consent. The northern concrete slab should not be retained because vegetation previously existed there, likely soil pockets and rock fissures remained beneath it, removal would improve root growth, reduce hard-surface runoff and better meet the HHLEP 2012 and HHDCP 2013 landscaping objectives; sandstone boulder retaining structures were preferable to timber sleepers. The proposed western boundary landscaping was acceptable for...

Court Disposition

Directions made for the Applicant to file agreed amended plans and conditions; liberty to apply granted.

Orders

  • ['Direct the Applicant to file agreed amended plans and conditions within 21 days.' "Grant the parties liberty to apply on two days' notice."]