Scouts Australia v Ryde City Council [2002] NSWLEC 56

Scouts Australia v Ryde City Council [2002] NSWLEC 56

The amended plans reduced the proposed villas from 13 to 11 and involved repositioning and consequential design changes, but retained the same essential underlying characteristics as the original development and were not a new development application. Following Ervin Mahrer and McDougall, s 39(2) of the Land and Environment Court Act 1979 invested the Court with the cl 55 power to agree to amendments to the development application. The council's earlier refusal to accept the same amended plans did not prevent the Court, after the appeal was lodged, from considering a fresh request for leave under Pt 13 r 16(b1). Leave should therefore be granted, with conditions allowing the council to...

Jurisdiction
Australia
Judgment Date
24 April 2002
Procedural Posture
Class 1 Appeal Against Refusal of Development Application DA 805/01 / Notice of Motion for Leave to Rely on Amended Plans Following Lodgement of Appeal
Outcome
Leave to rely on the amended plans was to be granted, subject to appropriate orders or conditions facilitating notification and administrative steps.
Legal Topics
['development Applications' 'amendment of Plans on Appeal' 'consent Authority Functions' 'land and Environment Court Jurisdiction' 'public Notification and Exhibition']
['planning and Environment Law' 'practice and Procedure'] ['development Applications' 'amendment of Plans on Appeal' 'consent Authority Functions' 'land and Environment Court Jurisdiction' 'public Notification and Exhibition']

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application DA 805/01 / Notice of Motion for Leave to Rely on Amended Plans Following Lodgement of Appeal

Legal Issues

  1. 1 ["Whether the Land and Environment Court had power under s 39(2) of the Land and Environment Court Act 1979 to exercise the consent authority's function under cl 55 of the Environmental Planning and Assessment Regulation 2000 to agree to amendment of a development application after an appeal had been lodged." 'Whether the proposed amended plans constituted a substantially different or new development application.' "Whether the council's earlier refusal to accept the amended plans exhausted the power to agree to the amendment." 'Whether leave should be granted under Pt 13 r 16(b1) of the Land and Environment Court Rules 1996 for the applicant to rely on the amended plans.']

Ratio Decidendi

The amended plans reduced the proposed villas from 13 to 11 and involved repositioning and consequential design changes, but retained the same essential underlying characteristics as the original development and were not a new development application. Following Ervin Mahrer and McDougall, s 39(2) of the Land and Environment Court Act 1979 invested the Court with the cl 55 power to agree to amendments to the development application. The council's earlier refusal to accept the same amended plans did not prevent the Court, after the appeal was lodged, from considering a fresh request for leave under Pt 13 r 16(b1). Leave should therefore be granted, with conditions allowing the council to...

Court Disposition

Leave to rely on the amended plans was to be granted, subject to appropriate orders or conditions facilitating notification and administrative steps.

Orders

  • ['The applicant is to be granted leave to rely upon the amended plans exhibited before the Court.' 'The parties are directed to lodge a form of appropriate orders for consideration by the Court within seven days.']