Hardy v Ku-ring-gai Council [2018] NSWLEC 1245

Hardy v Ku-ring-gai Council [2018] NSWLEC 1245

Leave to reopen was granted because the omission in the clause 4.6 written request was a potential procedural jurisdictional issue that could be cured by an amended written request, the planning experts had before them material showing the full extent of the height breach, the amended request did not raise new merits matters requiring further evidence, and there was no prejudice to the respondent; this course served the just, quick and cheap resolution of the real issues.

Jurisdiction
Australia
Judgment Date
24 May 2018
Procedural Posture
Class 1 Proceedings Under S 34 AA of the Land and Environment Court Act 1979 / Notice of Motion to Reopen the Proceedings After Hearing and Reservation of Decision to Adduce Further Evidence
Outcome
Application to reopen granted; Commissioner stated she had no power to make an order as to costs.
Legal Topics
['application to Reopen Proceedings' 'development Standard Variation' 'clause 4.6 Written Request' 'height of Buildings Development Standard' 'costs Jurisdiction']
['environmental Planning and Assessment' 'civil Procedure' 'land and Environment Court Procedure'] ['application to Reopen Proceedings' 'development Standard Variation' 'clause 4.6 Written Request' 'height of Buildings Development Standard' 'costs Jurisdiction']

Case Brief

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Procedural Posture

Class 1 Proceedings Under S 34 AA of the Land and Environment Court Act 1979 / Notice of Motion to Reopen the Proceedings After Hearing and Reservation of Decision to Adduce Further Evidence

Legal Issues

  1. 1 ['Whether the applicant should be granted leave to reopen the proceedings to adduce an amended written request to vary the height of buildings development standard pursuant to clause 4.6 in the Ku-ring-gai Local Environmental Plan 2015.' 'Whether admitting the amended written request would cause prejudice to the respondent or require further planning evidence.' 'Whether the Commissioner had power to make an order as to costs.']

Ratio Decidendi

Leave to reopen was granted because the omission in the clause 4.6 written request was a potential procedural jurisdictional issue that could be cured by an amended written request, the planning experts had before them material showing the full extent of the height breach, the amended request did not raise new merits matters requiring further evidence, and there was no prejudice to the respondent; this course served the just, quick and cheap resolution of the real issues.

Court Disposition

Application to reopen granted; Commissioner stated she had no power to make an order as to costs.

Orders

  • ['The applicant is granted leave to reopen the proceedings to adduce further evidence in the form of an amended written request to vary the height of buildings development standard pursuant to clause 4.6 in the Ku-ring-gai Local Environmental Plan 2015.']