Radray Constructions Pty Limited v Hornsby Shire Council [2006] NSWLEC 155

Radray Constructions Pty Limited v Hornsby Shire Council [2006] NSWLEC 155

The amendments, while significant and resulting in a 'changed development', remain within the essence of the original application and do not amount to a fresh development application. The Court has power under cl 55 to permit reliance on the amended plans, and the exercise of that discretion is appropriate given the history of the application, expert recommendations, and the steps taken to protect the respondent council from disadvantage.

Parties
Applicant: Radray Constructions Pty Limited; Respondent: Hornsby Shire Council
Jurisdiction
Australia
Judgment Date
04 April 2006
Procedural Posture
Class 1 Appeal (development Application) / Interlocutory Application for Leave to Rely on Amended Plans
Outcome
Leave granted to applicant to rely on specified amended plans and reports, subject to payment of costs and notification requirements.
Legal Topics
Development Application Amendment, Court's Jurisdiction to Permit Amendment, Discretionary Factors in Amending Plans
Planning and Environment Development Application Amendment Court's Jurisdiction to Permit Amendment Discretionary Factors in Amending Plans

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Parties

Radray Constructions Pty Limited

Applicant

Hornsby Shire Council

Respondent

Procedural Posture

Class 1 Appeal (development Application) / Interlocutory Application for Leave to Rely on Amended Plans

Legal Issues

  1. 1 Whether amended plans and reports fall within the power to amend a development application under cl 55 of the Environmental Planning and Assessment Regulation 2000
  2. 2 Whether the amendments constitute a fresh development application or remain an amendment of the original application
  3. 3 Whether discretionary factors support granting leave to rely on amended plans

Ratio Decidendi

The amendments, while significant and resulting in a 'changed development', remain within the essence of the original application and do not amount to a fresh development application. The Court has power under cl 55 to permit reliance on the amended plans, and the exercise of that discretion is appropriate given the history of the application, expert recommendations, and the steps taken to protect the respondent council from disadvantage.

Court Disposition

Leave granted to applicant to rely on specified amended plans and reports, subject to payment of costs and notification requirements.

Orders

  • Applicant to reimburse respondent for fees paid for Court appointed experts up to date of order within 21 days.
  • Applicant to pay respondent $5331.62 (70% of original DA fee) within 21 days.