Yassine Holdings Pty Ltd v Burwood Council [2015] NSWLEC 1023

Yassine Holdings Pty Ltd v Burwood Council [2015] NSWLEC 1023

Even comparing the Issue E Plans with the original development application, the amendments did not convert the application into an original application. The site and characterisation remained the same, and despite changes to FSR, height, number of floors, setbacks, floor layouts, unit numbers and car spaces, the essence remained a multi-level residential flat building with a podium form, floors above and a similar footprint. Having regard to the beneficial and facultative nature of cl 55, the Court had power to agree to the amendment and it was appropriate to exercise that power because the amendments responded to issues raised by council, objectors and the Draft LEP, costs thrown away...

Jurisdiction
Australia
Judgment Date
17 February 2015
Procedural Posture
Class 1 Development Application Appeal / Notice of Motion for Leave to Amend Development Application Plans
Outcome
Leave granted to amend the development application; applicant ordered to pay the respondent's costs arising under s 97B as agreed or assessed.
Legal Topics
['amendment of Development Application' 'clause 55 of the Environmental Planning and Assessment Regulation 2000' 'whether Amendments Convert a Development Application Into an Original Application' 'residential Flat Building Development']
['planning and Environmental Law' 'land and Environment Court Procedure'] ['amendment of Development Application' 'clause 55 of the Environmental Planning and Assessment Regulation 2000' 'whether Amendments Convert a Development Application Into an Original Application' 'residential Flat Building Development']

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Procedural Posture

Class 1 Development Application Appeal / Notice of Motion for Leave to Amend Development Application Plans

Legal Issues

  1. 1 ['Whether the proposed Issue E Plans were within the power to amend or vary a development application under cl 55 of the Environmental Planning and Assessment Regulation 2000.' "Whether the amendments would convert development application No. DA/62/2014 into an original application outside the Court's jurisdiction." 'Whether the Court should exercise its discretion to permit the amendment.']

Ratio Decidendi

Even comparing the Issue E Plans with the original development application, the amendments did not convert the application into an original application. The site and characterisation remained the same, and despite changes to FSR, height, number of floors, setbacks, floor layouts, unit numbers and car spaces, the essence remained a multi-level residential flat building with a podium form, floors above and a similar footprint. Having regard to the beneficial and facultative nature of cl 55, the Court had power to agree to the amendment and it was appropriate to exercise that power because the amendments responded to issues raised by council, objectors and the Draft LEP, costs thrown away...

Court Disposition

Leave granted to amend the development application; applicant ordered to pay the respondent's costs arising under s 97B as agreed or assessed.

Orders

  • ['The applicant is granted leave to amend development application No. DA/62/2014 in accordance with the plans referred to in Annexure "A" to the Affidavit of Troy Flaherty affirmed on 2 February 2015 (Issue E Plans).' "The Applicant is to pay the Respondent's costs arising under s 97B of the Environmental Planning...