Catholic Metropolitan Cemeteries Trust v Penrith City Council

EXTEMPORE Judgment

1. HIS HONOUR: In November 2017, the Catholic Metropolitan Cemeteries Trust (the Applicant) lodged a development application with Penrith City Council (the Council) seeking consent for a large cemetery development on golf course land at Mulgoa. That application was determined by refusal by the Sydney Western City Planning Panel pursuant to direction by the Independent Planning Commission. As a consequence of that, the Applicant commenced Class 1 proceedings in this Court seeking to have the proposed development approved.
2. In late 2019, an application was made on behalf of the Applicant seeking to amend the development application. That application to amend was granted and was supported by an affidavit of a solicitor for the Applicant, Mr Salon, an affidavit which, with respect to relevant documents attached to it, became Exhibit C in these proceedings before me.
3. In the final throes of 2020, the Applicant sought to bring before the Court Notice of Motion making a further application to amend its proposed development. The primary effect, as I need to deal with it today, of that proposed amendment was to more than halve the number of burials able to be accommodated in the cemetery element of the proposed development for which leave had been granted at the end of 2019.
4. Also incorporated in that application to amend were significant and, it is fair to say, contentious additional elements associated with future development of the clubhouse and clubhouse-associated facilities of the golf course. That gives rise to issues of permissibility with respect to those developments.
5. The Notice of Motion came on for hearing before me yesterday, 27 January 2021. During the course of those proceedings, I observed that it seemed to me that these matters were the primary contentions pressed by the Council by Mr Pickles SC, its representative on the Notice of Motion, in proposing that I ought not grant leave to amend as the amendment did not fit within the permissible scope of reg 55 of the Environmental Planning and Assessment Regulation 2000 (as considered in cases such as Ebsworth v Sutherland Shire Council [2005] NSWLEC 603, determined by Talbot ACJ; Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155, determined by Jagot J or, more recently, by Robson J in Orico Properties Pty Ltd v Inner West Council [2017] NSWLEC 90).