Mirvac Projects Pty Ltd v Ku-Ring-Gai Council & Anor (No 2) [2007] NSWLEC 672

Mirvac Projects Pty Ltd v Ku-Ring-Gai Council & Anor (No 2) [2007] NSWLEC 672

The notice of motion was dismissed as a matter of discretion because the proposed re-opening could not be conveniently confined to a discrete issue, Mirvac's construction of s 109B was not beyond argument and would raise further issues, Mirvac had lodged a development application generally consistent with the earlier merits recommendations, and the Court was not satisfied that perfecting orders consistent with Talbot J's reasons would knowingly breach natural justice. The Court was also not satisfied that the consent should be modified by including a note before condition 131.

Jurisdiction
Australia
Judgment Date
16 October 2007
Procedural Posture
Appeal Concerning an Application to Modify a Development Consent / Notice of Motion to Re Open Proceedings After Reasons for Decision and Before Final Orders
Outcome
Notice of motion dismissed; appeal dismissed; application to modify development consent refused.
Legal Topics
['application to Re Open' 'opportunity to Be Heard' 'modification of Development Consent' 'deep Soil Landscaping Development Standard' 'unavailability of Trial Judge' 'discretion to Dismiss Notice of Motion']
['environmental Planning and Assessment' 'land and Environment Court Procedure' 'natural Justice'] ['application to Re Open' 'opportunity to Be Heard' 'modification of Development Consent' 'deep Soil Landscaping Development Standard' 'unavailability of Trial Judge' 'discretion to Dismiss Notice of Motion']

Case Brief

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Procedural Posture

Appeal Concerning an Application to Modify a Development Consent / Notice of Motion to Re Open Proceedings After Reasons for Decision and Before Final Orders

Legal Issues

  1. 1 ['Whether the matter should be re-opened to allow argument that s 109B of the Environmental Planning and Assessment Act 1979 answered the problem identified in the earlier reasons for decision.' 'Whether Mirvac had a sufficient opportunity to be heard on the issue that the modified development would breach cl 25I(2) of the Ku-ring-gai Planning Scheme Ordinance.' 'Whether the Court could or should modify the consent by inclusion of a note before condition 131.' "What final orders reflected Talbot J's reasons for decision."]

Ratio Decidendi

The notice of motion was dismissed as a matter of discretion because the proposed re-opening could not be conveniently confined to a discrete issue, Mirvac's construction of s 109B was not beyond argument and would raise further issues, Mirvac had lodged a development application generally consistent with the earlier merits recommendations, and the Court was not satisfied that perfecting orders consistent with Talbot J's reasons would knowingly breach natural justice. The Court was also not satisfied that the consent should be modified by including a note before condition 131.

Court Disposition

Notice of motion dismissed; appeal dismissed; application to modify development consent refused.

Orders

  • ["The applicant's notice of motion filed 24 September 2007 is dismissed." 'The appeal is dismissed.' 'The application to modify development consent DA 1388/04 lodged on 24 November 2006 is refused.' 'Each party is to pay its own costs of the proceedings save and except for costs of the notice of motion filed on 24...