Lo Brothers Company Pty Limited v Inner West Council [2022] NSWLEC 1094

Lo Brothers Company Pty Limited v Inner West Council [2022] NSWLEC 1094

The Court agreed to the proposed amendments because, construed broadly and beneficially under cl 55(1), they did not so change the nature and characteristics of the development as to constitute a new or original application. The Applicant's documentation purposively confined the land to which the amended application related to 34-36 Lackey Street and tree removal at 32 Lackey Street, excluding the Lane ROW, so owners consent for the Lane ROW was not required. However, because future vehicular egress and associated tree removal in the Lane ROW had a real and sufficient connection with the proposed development, their likely impacts would need to be considered in the later merits determination.

Jurisdiction
Australia
Judgment Date
23 February 2022
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA20210182 / Procedural Ruling on Whether to Agree to Amendment of the Development Application
Outcome
The Court agreed to the Applicant amending Development Application DA20210182 and gave directions for lodgement of the amendment on the NSW Planning Portal.
Legal Topics
['amendment of Development Application' 'owners Consent' 'land to Which the Development Application Relates' 'mixed Use Development' 'vehicular Access and Egress' 'deferred Commencement Condition' 'rights of Way' 'tree Removal']
['planning and Environment Law' 'development Applications' 'land and Environment Court Procedure'] ['amendment of Development Application' 'owners Consent' 'land to Which the Development Application Relates' 'mixed Use Development' 'vehicular Access and Egress' 'deferred Commencement Condition' 'rights of Way' 'tree Removal']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA20210182 / Procedural Ruling on Whether to Agree to Amendment of the Development Application

Legal Issues

  1. 1 ["Whether the Court should agree to the Applicant's proposed amendment under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, including removal of site vehicular egress from the application before the Court." 'Whether the proposed amendment so changed the nature and characteristics of the development as to render it an original or new application rather than an amended application.' 'Whether owners consent was still required for the Lane ROW because future egress and associated tree removal were inextricably part of the land to which the development application relates.' 'Whether the proposed deferred commencement approach involved an impermissible deferral of consideration of likely impacts required by s 4.15(1)(b) of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

The Court agreed to the proposed amendments because, construed broadly and beneficially under cl 55(1), they did not so change the nature and characteristics of the development as to constitute a new or original application. The Applicant's documentation purposively confined the land to which the amended application related to 34-36 Lackey Street and tree removal at 32 Lackey Street, excluding the Lane ROW, so owners consent for the Lane ROW was not required. However, because future vehicular egress and associated tree removal in the Lane ROW had a real and sufficient connection with the proposed development, their likely impacts would need to be considered in the later merits determination.

Court Disposition

The Court agreed to the Applicant amending Development Application DA20210182 and gave directions for lodgement of the amendment on the NSW Planning Portal.

Orders

  • ['The Court, exercising its functions under s 39(2) of the Land and Environment Court Act 1979 and the function of Inner West Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the applicant amending development application DA20210182...