Duke Developments Australia 4 Pty Limited v Sutherland Shire Council [2021] NSWLEC 69

Duke Developments Australia 4 Pty Limited v Sutherland Shire Council [2021] NSWLEC 69

The Court has no power, either express or implied, to grant leave to amend a modification application for development consent under the Environmental Planning and Assessment Act 1979 (NSW). Any amendment to the application must be effected by withdrawal and lodgment of a new application. The power to approve subject to conditions or to consider alternative procedural approaches does not extend to amending the application itself. The Court thus refused leave to rely on amended plans, other than a minor, unopposed extension of time for filing a joint expert report.

Jurisdiction
Australia
Judgment Date
02 July 2021
Procedural Posture
Class 1 Appeal / Interlocutory Motion Prior to Final Hearing
Outcome
Interlocutory notice of motion dismissed, apart from agreed time extension for expert report.
Legal Topics
['modification of Development Consent' 'amendment of Modification Applications' 'powers of Court and Consent Authorities' 'civil Procedure – Powers of Amendment']
['planning and Environment Law' 'civil Procedure'] ['modification of Development Consent' 'amendment of Modification Applications' 'powers of Court and Consent Authorities' 'civil Procedure – Powers of Amendment']

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Procedural Posture

Class 1 Appeal / Interlocutory Motion Prior to Final Hearing

Legal Issues

  1. 1 ['Whether the Court and/or consent authority has power to amend a modification application for development consent' 'Whether s 23 of the Local Government Act 1993 (NSW) or s 64 of the Civil Procedure Act 2005 (NSW) confers such a power' 'Whether amendments can be made through conditions or other alternative procedural avenues']

Ratio Decidendi

The Court has no power, either express or implied, to grant leave to amend a modification application for development consent under the Environmental Planning and Assessment Act 1979 (NSW). Any amendment to the application must be effected by withdrawal and lodgment of a new application. The power to approve subject to conditions or to consider alternative procedural approaches does not extend to amending the application itself. The Court thus refused leave to rely on amended plans, other than a minor, unopposed extension of time for filing a joint expert report.

Court Disposition

Interlocutory notice of motion dismissed, apart from agreed time extension for expert report.

Orders

  • ['Order (2) of the Short Minutes of Order dated 12 April 2021 be varied so that the joint expert report of the town planners, Mr Jeff Mead and Mr Damon Kenny, be filed on or before 9 July 2021.' 'The Notice of Motion filed 1 June 2021 is otherwise dismissed.']