Kennedy v Stockland Development Pty Ltd & Anor (No 3) [2011] NSWLEC 16

Kennedy v Stockland Development Pty Ltd & Anor (No 3) [2011] NSWLEC 16

The proposed B31 particular was refused because condition B31 did not require a hydrological or environmental assessment and the particular could not arise from the condition as drafted. Amendments concerning B45/B46 were allowed because they appeared to arise from condition B45 and a later hearing date would avoid prejudice, subject to prompt provision of material facts. The proposed linkage between B9(h) and B11 was rejected because the conditions stood separately; any B9(h) ground required material facts and the B11 ground could proceed only without the allegation tied to excavation greater than 2 metres. Access and expert survey evidence were unnecessary for the alleged work outside...

Jurisdiction
Australia
Judgment Date
21 February 2011
Procedural Posture
Class 4 Proceedings Challenging Compliance With Conditions of a Major Project Approval for a Residential Subdivision at Sandon Point, Bulli / Interlocutory Notices of Motion Seeking Leave to Amend Points of Claim, Leave to Rely on Expert Survey Evidence, Access to Land, and Extension of Time for Evidence
Outcome
Subsequent orders made; the interlocutory motions were determined in part, with some amendments refused, some allowed or permitted only with modification, and limited access and expert survey evidence allowed.
Legal Topics
['amendment of Pleadings' 'material Facts in Pleadings' 'expert Evidence' 'access to Land for Expert Inspection' 'conditions of Major Project Approval' 'flooding and Stormwater Run Off' 'geotechnical Investigations and Remediation' 'survey Evidence for Earthworks Area']
['civil Procedure' 'planning and Environment Law'] ['amendment of Pleadings' 'material Facts in Pleadings' 'expert Evidence' 'access to Land for Expert Inspection' 'conditions of Major Project Approval' 'flooding and Stormwater Run Off' 'geotechnical Investigations and Remediation' 'survey Evidence for Earthworks Area']

Case Brief

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Procedural Posture

Class 4 Proceedings Challenging Compliance With Conditions of a Major Project Approval for a Residential Subdivision at Sandon Point, Bulli / Interlocutory Notices of Motion Seeking Leave to Amend Points of Claim, Leave to Rely on Expert Survey Evidence, Access to Land, and Extension of Time for Evidence

Legal Issues

  1. 1 ['Whether leave should be granted to rely on amended points of claim close to the hearing date' 'Whether proposed particulars concerning condition B31 arose from the terms of that condition' 'Whether proposed amendments concerning conditions B45 and B46 should be allowed' 'Whether proposed grounds impermissibly linked conditions B9(h) and B11' 'Whether leave should be granted to rely on expert survey evidence from Mr Tanner' 'Whether an order should be made for access to land to carry out a survey' 'Whether time for filing evidence should be extended and the hearing timetable adjusted']

Ratio Decidendi

The proposed B31 particular was refused because condition B31 did not require a hydrological or environmental assessment and the particular could not arise from the condition as drafted. Amendments concerning B45/B46 were allowed because they appeared to arise from condition B45 and a later hearing date would avoid prejudice, subject to prompt provision of material facts. The proposed linkage between B9(h) and B11 was rejected because the conditions stood separately; any B9(h) ground required material facts and the B11 ground could proceed only without the allegation tied to excavation greater than 2 metres. Access and expert survey evidence were unnecessary for the alleged work outside...

Court Disposition

Subsequent orders made; the interlocutory motions were determined in part, with some amendments refused, some allowed or permitted only with modification, and limited access and expert survey evidence allowed.

Orders

  • ['The proposed further particular concerning condition B31 was not allowed.' 'The amendments to par 41(i) and par 41(ii) concerning conditions B45/B46 were allowed subject to prompt provision of the material facts to be relied on.' 'The proposed ground linking conditions B9(h) and B11 was not allowed as drafted.'...