El Boustani v Minister Administering the Environmental Planning and Assessment Act 1979 [2011] NSWLEC 214

El Boustani v Minister Administering the Environmental Planning and Assessment Act 1979 [2011] NSWLEC 214

Although the late amendment would prejudice the applicants because they had not prepared evidence on the factual issue of whether the 2007 consent's lapse affected their ability to claim relocation and disturbance costs, leave to amend was appropriate. The respondent had not unreasonably considered that causation of disturbance costs was already in issue, the applicants had delayed seeking particulars of the bare denial, and refusing the amendment would risk leaving necessary issues for final determination outside the pleadings, contrary to the just, quick and cheap resolution of the real issues in dispute.

Jurisdiction
Australia
Judgment Date
17 November 2011
Procedural Posture
Class 3 Compulsory Acquisition Compensation Proceedings / Notice of Motion Seeking Leave to Amend Points of Defence Before Hearing
Outcome
Leave to amend granted; consequential directions made; costs reserved.
Legal Topics
['late Amendment of Points of Defence' 'prejudice From Amendment' 'disturbance Costs' 'development Consent Lapse' 'existing Use Rights' 'just, Quick and Cheap Resolution of Proceedings']
['practice and Procedure' 'compulsory Acquisition' 'planning and Environment'] ['late Amendment of Points of Defence' 'prejudice From Amendment' 'disturbance Costs' 'development Consent Lapse' 'existing Use Rights' 'just, Quick and Cheap Resolution of Proceedings']

Case Brief

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Procedural Posture

Class 3 Compulsory Acquisition Compensation Proceedings / Notice of Motion Seeking Leave to Amend Points of Defence Before Hearing

Legal Issues

  1. 1 ['Whether the respondent should be granted leave to amend its points of defence shortly before the hearing to plead that the 2007 development consent would lapse on 16 June 2012.' 'Whether the late amendment would prejudice the applicants because they had not prepared evidence on causation of disturbance costs and continued intensive agricultural use after lapse of consent.' 'Whether any prejudice justified refusing the amendment, having regard to the need to determine the real issues in dispute and the overriding purpose under the Civil Procedure Act 2005.']

Ratio Decidendi

Although the late amendment would prejudice the applicants because they had not prepared evidence on the factual issue of whether the 2007 consent's lapse affected their ability to claim relocation and disturbance costs, leave to amend was appropriate. The respondent had not unreasonably considered that causation of disturbance costs was already in issue, the applicants had delayed seeking particulars of the bare denial, and refusing the amendment would risk leaving necessary issues for final determination outside the pleadings, contrary to the just, quick and cheap resolution of the real issues in dispute.

Court Disposition

Leave to amend granted; consequential directions made; costs reserved.

Orders

  • ['The respondent is granted leave to file his further amended points of defence dated 11 November 2011.' 'The town planners are to meet, confer and prepare any further joint report as a consequence of the amendment by no later than 4.00pm 22 November 2011 in relation to the likelihood of consent been granted for the...