Cachia v Manly Council (No 2) [2009] NSWLEC 1107

Cachia v Manly Council (No 2) [2009] NSWLEC 1107

The proposed amendments, especially relating to the northern setback and streetscape alterations, are significant in nature and thus not minor; therefore, if leave to amend were granted, a costs order under s 97B(2) would be mandatory. As the applicant did not seek to amend, the original appeal failed and was dismissed.

Parties
Applicant: Ms C Cachia; Respondent: Manly Council
Jurisdiction
Australia
Judgment Date
17 March 2009
Procedural Posture
Class 1 Appeal, Development Application / Post Merits, Costs and Amendment Application; Final Orders
Outcome
Appeal dismissed
Legal Topics
Amendment of Development Applications, Costs Orders, Interpretation of 'minor Amendment', Environmental Planning and Assessment Act S 97 B
Planning Law Local Government Law Amendment of Development Applications Costs Orders Interpretation of 'minor Amendment' Environmental Planning and Assessment Act S 97 B

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Parties

Ms C Cachia

Applicant

Manly Council

Respondent

Procedural Posture

Class 1 Appeal, Development Application / Post Merits, Costs and Amendment Application; Final Orders

Legal Issues

  1. 1 Whether proposed amendments to development plans constitute 'minor amendments' under s 97B of the Environmental Planning and Assessment Act 1979
  2. 2 Whether a mandatory costs order must be made if amendments are not minor
  3. 3 Proper construction of 'minor amendment' in statutory context

Ratio Decidendi

The proposed amendments, especially relating to the northern setback and streetscape alterations, are significant in nature and thus not minor; therefore, if leave to amend were granted, a costs order under s 97B(2) would be mandatory. As the applicant did not seek to amend, the original appeal failed and was dismissed.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • Development Application 81/08 for demolition of an existing dwelling house and construction of a two-storey dwelling house with basement garage and landscaping at 9 Seaview Street, Balgowlah is refused.