Moshav Development Rose Bay Pty Limited v Woollahra Municipal Council [2016] NSWLEC 141

Moshav Development Rose Bay Pty Limited v Woollahra Municipal Council [2016] NSWLEC 141

Leave to rely on the amended plans is granted, as the alleged impermissibility raised by the council does not warrant refusal at this procedural stage; there is no application to separately determine the question of existing use rights, and this is appropriately left to be determined at trial.

Parties
Applicant: Moshav Development Rose Bay Pty Limited; Respondent: Woollahra Municipal Council
Jurisdiction
Australia
Judgment Date
20 October 2016
Procedural Posture
Development Application / Procedural Motion for Leave to Rely on Amended Plans
Outcome
Leave to rely on amended plans granted; costs order made in favour of council under s 97B(2)
Legal Topics
Development Application, Amendment of Plans, Existing Use Rights, Costs Order
Planning and Environment Law Development Application Amendment of Plans Existing Use Rights Costs Order

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Parties

Moshav Development Rose Bay Pty Limited

Applicant

Woollahra Municipal Council

Respondent

Procedural Posture

Development Application / Procedural Motion for Leave to Rely on Amended Plans

Legal Issues

  1. 1 Whether leave should be granted to rely on amended plans despite council objections regarding permissibility
  2. 2 Whether the issue of existing use rights should be determined as a separate question

Ratio Decidendi

Leave to rely on the amended plans is granted, as the alleged impermissibility raised by the council does not warrant refusal at this procedural stage; there is no application to separately determine the question of existing use rights, and this is appropriately left to be determined at trial.

Court Disposition

Leave to rely on amended plans granted; costs order made in favour of council under s 97B(2)

Orders

  • Leave granted for applicant to rely on amended plans as sought in order (1) of the Notice of Motion
  • Applicant to pay council's additional costs as consequence of amendment of development application, pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979