Cavcorp Australia Pty Ltd v Hunters Hill Council [2021] NSWLEC 104

Cavcorp Australia Pty Ltd v Hunters Hill Council [2021] NSWLEC 104

The Court agreed to the amendment because the modification application had not yet been determined, the amendments were intended to reflect Clay AC's findings on modifications he was minded to approve, withdrawal of the garage and storage room modifications would lessen environmental impacts, and withdrawal would avoid a potential issue about whether only some modifications in a modification application could be approved. It was not fair and reasonable to order costs thrown away because the amendment was intended to achieve what Clay AC had directed Cavcorp to do.

Jurisdiction
Australia
Judgment Date
23 September 2021
Procedural Posture
Class 1 Application to Modify Development Consent / Procedural Ruling on Amended Notice of Motion to Amend Modification Application and Costs Thrown Away
Outcome
Application to amend the modification application allowed; costs thrown away refused.
Legal Topics
['modification of Development Consent' 'amendment of Modification Application' 'consent Authority Functions' 'nsw Planning Portal Lodgment' 'costs Thrown Away']
['planning and Environment Law' 'civil Procedure' 'costs'] ['modification of Development Consent' 'amendment of Modification Application' 'consent Authority Functions' 'nsw Planning Portal Lodgment' 'costs Thrown Away']

Case Brief

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Procedural Posture

Class 1 Application to Modify Development Consent / Procedural Ruling on Amended Notice of Motion to Amend Modification Application and Costs Thrown Away

Legal Issues

  1. 1 ["Whether the Court should exercise the function of Hunter's Hill Council as consent authority under s 39(2) of the Land and Environment Court Act 1979 to agree to amendment of the modification application under cl 121B(1) of the Environmental Planning and Assessment Regulation 2000." 'Whether the proposed amendments to the modification application were appropriate.' "Whether Cavcorp should pay the Council's and Mrs Diab's costs thrown away by reason of the amendment of the modification application."]

Ratio Decidendi

The Court agreed to the amendment because the modification application had not yet been determined, the amendments were intended to reflect Clay AC's findings on modifications he was minded to approve, withdrawal of the garage and storage room modifications would lessen environmental impacts, and withdrawal would avoid a potential issue about whether only some modifications in a modification application could be approved. It was not fair and reasonable to order costs thrown away because the amendment was intended to achieve what Clay AC had directed Cavcorp to do.

Court Disposition

Application to amend the modification application allowed; costs thrown away refused.

Orders

  • ["The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Hunter's Hill Council as the relevant consent authority under cl 121B(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the applicant amending the application for modification of the development...