Fred Caterson Champions Inc. v The Hills Shire Council (No 5)

Representation: Counsel:
M Painter SC with N Hammond (Applicant)
P McDonald SC with I King (Respondent)
Solicitors:
Stringybark Legal (Applicant)
Matthews Folbigg Lawyers (Respondent)

File Number(s): 2025/340555

Publication restriction: Nil

EX TEMPORE JUDGMENT

The Applicant Seeks Leave to Amend its Amended Summons

1. By notice of motion filed on 30 June 2026, the applicant, Fred Caterson Champions Inc (“FCCI”), seeks to further amend its amended summons filed initially on 4 September 2025. The application is opposed by the respondent, The Hills Shire Council (“the Council”).

2. The factual background to the motion was set out in Fred Caterson Champions Inc t/as Fred Caterson Champions v The Hills Shire Council [2026] NSWCA 68, and is repeated here for convenience (at [5]-[10]):

5 The appellant is an incorporated association, the objectives of which are to maintain community access to the Fred Caterson Reserve in Castle Hill (the Reserve), while preserving its endangered ecological bushland, flora and fauna. That fauna includes the Powerful Owl, Masked Owl, and Sooty Owl (the Owls), each of which are listed as vulnerable species under the Biodiversity Conservation Act 2016 (NSW): see s 4.2 and Sch 1, Pt 3, Div 1 of that Act.

6 On 9 May 2025, the Council approved the proposed development of a sports complex at the Reserve comprising three rugby union fields and related infrastructure, including lighting of 100 lux on each playing field (the Development). It did so by approving on 30 September 2024 a Review of Environmental Factors (REF) that had been prepared for the Council by Biosis Pty Ltd and by approving on 9 May 2025 an Addendum Review of Environmental Factors (Addendum REF) also prepared by Biosis (the assessment of development of recreational facilities on Crown land of which the Council is the manager has proceeded on the basis that it falls within cl 2.73(3) of State Environmental Planning Policy (Transport and Infrastructure) 2021 and may be carried out without consent).

7 By summons filed in the LEC on 4 September 2025 and amended on 10 October 2025, the appellant seeks judicial review of the decisions to approve the REF and Addendum REF. Part of the appellant’s challenge, reflected in grounds 3 and 4 in the amended summons, is that the Council breached its duty to consider the environmental impact of the Development in accordance with s 5.5 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act). At the relevant time, s 5.5(1) of the EPA Act provided:

5.5 Duty to consider environmental impact

(1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.

8 Section 5.5(1) was amended with effect from 21 March 2026 to remove the phrase “to the fullest extent possible” and a new s 5.5(2) was added: see Environmental Planning and Assessment Amendment (Planning System Reforms) Act 2025 (NSW), sch 1[113] and [114]. The appeal proceeded on the basis that the relevant obligation was the one that existed before the amendment.

9 Ground 3 alleges that the Council breached its duty under s 5.5 of the EPA Act by failing to make inquiries as to “the impact on the Owls being displaced from their habitat (including impacts on their feeding and breeding habits) by reason of increases in light spill associated with the [Development]”, and that this failure was legally unreasonable.

10 Ground 4 alleges that, in breach of s 5.5 of the EPA Act, the Council failed to take into account the cumulative impact of the Development with other existing or likely future activities at the Reserve, as required by reg 172(1)(o) of the Environmental Planning and Assessment Regulation 2021 (NSW). The likely future activity relied upon by the appellant was a potential increase in lighting from 100 lux to 500 lux as part of negotiations between the Council and the Eastwood Rugby Club.

The Proposed Amendments to Include Foraging Area

3. In summary, the dispute between the parties concerns the Council’s approval of a sports complex at the Fred Caterson Reserve in Castle Hill and its impact on local avian fauna, namely, owls, and in particular, Powerful Owls (“the owls”). The construction of the facility and supporting infrastructure is defined as the “Activity” in the amended summons and also in this judgment.

4. The proposed further amended summons pleads that:

1. The Applicant is an incorporated association, the objectives of which is to maintain full community access to Fred Caterson Reserve, Castle Hill (Reserve), while also preserving the endangered ecological bushland, flora and fauna in the Reserve.

2. The relevant ‘activity’ approved by the Respondent was described in the Review of Environmental Factors (REF) as ‘excavation, construction of 3 new rugby fields including associated retaining walls, sport field lighting, sport field irrigation, construction of an amenities building and car parking, construction of vehicle access, roads and footpaths’ (Activity) at Lot 224 DP 752020, being land known as the former pony club site (Site) within Fred Caterson the Reserve, Castle Hill.

Particulars

The Reserve includes the Site.

The Applicants have adopted the defined terms used in paragraph 13 of the affidavit of Mr Chris Moore, filed by the Respondent on 9 June 2026

5. Paragraphs 7 to 10 under “Ground 3” allege the following:

Ground 3

7. In breach of Section 5.5 of EPA Act the Respondent failed to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment in its consideration of whether to approve the Activity.

8. The sport field lighting has been designed for 100 lux lighting on all 3 playing fields, with the lights mounted on top of poles of 30m and 32m in height.

Particulars

Tender Documents S010 Rev B & S011 Rev C prepared by VD & D Design, May2024

9. The Powerful Owl, Masked Owl and Sooty Owl (all listed as Vulnerable under the Biodiversity Conservation Act 2016) have all either been observed either on the Ssite, adjacent to it in the Reserve, or are known to breed in habitat adjacent to the Ssite in the Reserve.

Particulars

Flora and Fauna Assessment Report dated July 2024 by Narla Consulting and attached to the REF

Ecological Constraints Assessment Report dated May 2023 by Narla Consulting at 5.5

10. The Powerful Owl, Masked Owl and Sooty Owl, including a breeding pair of Powerful Owls (Owls) may be displaced from their habitat adjacent to the sSite, in the Reserve, by increases in light spill as a result of the Activity.

Particulars

Ecological Constraints Assessment Report dated May 2023 by Narla Consulting at 5.5

6. Relevantly, the present iteration of the summons pleads that the Council breached its duty under s 5.5 of the Environmental Planning and Assessment Act 1979 (“EPAA”) by failing to make inquiries as to the impact on the owls (this was inserted during an earlier round of amendments):

12. Having regard to the facts pleaded in paragraphs 8, 9, 10 & 11 of the Summons, before approving the REF the Respondent, acting reasonably, ought to have made inquiries as to the impact on the Owls being displaced from their habitat (including impacts on their feeding and breeding habits) by reason of increases in light spill associated with the Activity.

7. Section 5.5(1) of the EPAA states:

5.5 Duty to consider environmental impact

(1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account matters affecting or likely to affect the environment by reason of that activity.

8. The proposed alterations to the amended summons are to paragraphs 2, 5, 6, 9, 10, 11 and 17. Significantly, the Council consents to all of the mooted amendments except those contained at paragraph 11.

9. Paragraph 11 of the proposed further amended summons is in the following terms:

11. The impact or likely impact of the sport field lighting from lights of up to 100 lux lighting mounted on poles of 30m and 32m in height on the environment within the meaning in s 5.5 of the EPA Act, being the adjoining habitat and foraging area of the Powerful Owl, Masked Owl and Sooty Owl, Owls in the Reserve, is not described or considered in the Flora and Fauna Assessment (Narla, July 2024 or Narla, 2025) or the REF (September 2024) or Addendum REF.

Particulars

The impact or likely impact of lighting, including light spill, on the habitat of the Owls was not considered.

The impact or likely impact of lighting, including light spill, on fauna constituting the Owls’ prey on the Site and Reserve was not considered.

The available habitat on the Site and Reserve will be impacted by lighting, resulting in a net reduction in available habitat.

Prey activity on the Site and Reserve will be impacted by lighting, with a net reduction in available prey.

10. The amendments to paragraph 11 are, the FCCI submitted, responsive to:

(a) “observations” made by the Court of Appeal in Fred Caterson with respect to the drafting of the amended summons; and (b) the FCCI’s intention to provide further particulars in light of the expert ecological evidence of Dr Stephen Debus (filed on its behalf) and the evidence filed by the Council in reply.

11. For the reasons discussed below, leave is granted to the FCCI to further amend its summons.

Evidence and Submissions of the Parties

12. The application to amend was supported by the affidavit of James Ryan, affirmed on 30 June 2026 (“Ryan affidavit”). Ryan is a solicitor for FCCI. Relevantly he stated (emphasis in the original):

5 On 13 April 2026 the Court of Appeal in interlocutory proceedings considered the admission of expert evidence into the proceedings. On 22 April 2026 the Court delivered judgment.

6 The Court of Appeal made certain observations concerning the phrasing of the Summons, for example in relation to the definition of the "Site" (the former Pony Club site) which is within to the larger area of the "Reserve" (the Fred Caterson Reserve).

7 The draft Further Amended Summons, at page [2] of EX JR1, seeks to correct some of the observed deficiencies.

8 The FAS also provides further particulars to articulate the issues of the impact of the activity, including light spill, on the habitat and foraging area of the Owls in the Reserve, in light of the Court of Appeal's decision to grant the Applicant leave to rely on the expert evidence of Dr Debus and other evidence filed by the Respondent.

9 The affidavit of Dr Debus sworn on 30 October 2025 attaching his expert report considers the impact of light spill into the foraging habitat of the Owls. The Affidavit and annexed report are at page [11] of Ex JR1.

10 In paragraph 11 of his report, at page [23] Dr Debus considers potential impacts of the activity to be a reduction in foraging area of the breeding pair of Powerful Owls.

11 The affidavit of Mr Chris Moore of 9 June 2026 at [35] states he considered the Site was likely to provide foraging habitat for Powerful Owls. The Affidavit is at page [50] and paragraph [35] is at page [59] of Ex JR1.

12 At paragraph [12] of his Report Mr Ian Benson states that Birdlife Australia records indicate that the site forms part of the home range for the resident pair of PO and represents foraging habitat for the pair. The affidavit and Report of Mr Benson are filed as evidence in these proceedings.

13. The Ryan affidavit did not disclose any likely prejudice that would flow to FCCI if the Court did not permit the proposed amendments.

14. The FCCI also relied upon a bundle of documents that included Dr Debus’s ecological report dated 29 October 2025, an affidavit of Chris Moore, the General Manager and Principal Ecologist at Narla Environmental Pty Ltd, dated 9 June 2026 (filed on behalf of the Council), and the report of Ian Benson, the Director and Principal Ecologist at Anderson Environment and Planning, dated 10 June 2026 (also filed on behalf of the Council).

15. The principal reason proffered by FCCI for the delay in filing the application to amend was the Court of Appeal’s decision in Fred Caterson granting leave to FCCI to rely on the evidence of Dr Debus and receipt of the evidence filed by the Council in response to that report. It was not until this evidentiary process had concluded that FCCI was in a position to further amend the summons.

16. The proposed further amendments are, FCCI submitted, a matter of completeness. That is, to clarify that “habitat” includes foraging area, to the extent that it is necessary to do so.

17. The amendments could not have surprised the Council given the extensive reference to “foraging”, “foraging area” and “prey” in Dr Debus’s report, and the impact that the Activity and the light from the sporting fields will have on the activities of the owls in their habitat.

18. In addition, the Council could not be prejudiced because their ecological evidence made explicit reference to this issue. If the Council’s evidence was not sufficiently fulsome in this regard, this was due to forensic decisions made by the Council upon receipt of Dr Debus’s evidence, and was not the fault of any late amendment by FCCI.

19. The Council relied on the affidavit of Simone Brew, a solicitor for the Council, sworn on 2 July 2026. In her affidavit, Brew deposes to having received the draft further amended summons from FCCI’s solicitors on 29 June 2026, and moreover, that she did “not consider that there is now time for the Respondent to prepare and serve evidence in answer to the issue of owl foraging habitat or owl prey.” Brew was not cross-examined on the opinion expressed by her in her affidavit.

20. Annexed to the Brew affidavit was a letter dated 2 July 2026, addressed to the solicitors for FCCI. In it, the Council outlined its objections to FCCI’s proposed amendments to paragraph 11. Those objections may be summarised as follows:

(a) it was only upon receipt of the draft further amended summons that Council became aware that there would be an issue raised about the effect of lighting on the availability of prey and foraging; (b) if the Council had been informed of this issue prior to the receipt of the draft further amended summons then it “would have considered the need for expert evidence” in relation to it; (c) the issue was only “mentioned indirectly” in the evidence of Dr Debus; (d) the Council’s response to the case against it has been formulated on the basis of the pleadings as they appeared in the amended summons; and (e) the lateness of the notice of the amendment by the FCCI prejudiced the Council’s ability to adduce evidence in relation to the issue of lighting impacts on foraging area.

21. In short, the Council argued that it did not know that the effect of lighting on the available foraging area of the owls was to be an issue when it prepared its evidence, and therefore, it did not consider whether expert evidence was required in response. The lateness of the proposed amendments to paragraph 11 of the amended summons prejudiced the Council’s ability to respond to the case against it. Case management procedure would not be able to cure or mitigate the problem given the imminency of the hearing. Accordingly, if the amendments are permitted it “will be forced to make an application for a vacation and adjournment of the final hearing”.

Principles Applicable to Amendment Applications

22. The discretionary power of this Court to amend documents, including pleadings, is located in s 64 of the Civil Procedure Act 2005 (“CPA”):

64 Amendment of documents generally

(1) At any stage of proceedings, the court may order—

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. …

23. Section 58(1) and (2) of the CPA states:

58 Court to follow dictates of justice

(1) In deciding—

(a) whether to make any order or direction for the management of proceedings, including—

(i) any order for the amendment of a document, and

(ii) any order granting an adjournment or stay of proceedings, and

(iii) any other order of a procedural nature, and

(iv) any direction under Division 2, and

(b) the terms in which any such order or direction is to be made,

the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court—

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant—

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

24. In determining what the dictates of justice are, regard must be had to s 56 of the CPA:

56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

25. Section 57 of the CPA further provides that:

57 Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects—

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

26. A statement of the appliable legal principles was recently set out in Mohareb v State of New South Wales [2025] NSWCA 156 (at [35]):

35 On the question of delay, the applicant emphasised certain aspects of the reasons in Hannaford about leave to amend, which he submitted did not apply in this case. Of greater significance however is the broader statement of the applicable principles concerning an application for leave to appeal from a refusal of an application for leave to amend, which Barrett JA set out in Kelly v Mina [2014] NSWCA 9 at [45]-[48], to which Sackville JA referred with approval in Hannaford at [16]:

“[45] The amendment application was governed by s 64 of the Civil Procedure Act 2005 which, in subsection (1), provides that, at any stage of proceedings, the court may order that any document in the proceedings be amended, or that leave be granted to a party to amend any document in the proceedings. Section 64(2) then provides:

‘Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.’

…

[47] Particularly in light of the opening words of s 64(2), it is not controversial that the provisions in Part 6 Division 1 of the Civil Procedure Act were binding on the primary judge and that, in accordance with s 58, his Honour was bound to seek to act in accordance with the dictates of justice and, in so doing, to have regard to s 56 concerning the ‘overriding purpose’ of the Act and rules of court in their application to civil proceedings; also that, in addressing the amendment application in the particular statutory context, his Honour was required to take into account a combination of factors identified by the High Court in Aon Risk Services Australia Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 and usefully summarised by Vickery J in Namberry Craft Pty Ltd v Watson [2011] VSC 136 (at [38]) as follows:

‘(a) Whether there will be substantial delay caused by the amendment;

(b) The extent of wasted costs that will be incurred;

(c) Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded;

(d) Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials;

(e) Whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.’

[48] As this Court has emphasised more than once, Part 6 Division 1 of the Civil Procedure Act made substantive and important changes to the law so that considerations of promptness and efficiency in the conduct of civil litigation are afforded a new and special importance which may sometimes provoke a sense of injustice in a party who has failed to proceed with despatch."

(Citations omitted.)

27. In Mohareb the Court of Appeal quoted from the reasons of Barrett JA in Kelly v Mina [2014] NSWCA 9, a decision which has been endorsed and applied in this Court (New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act (Leeton Courthouse) [2025] NSWLEC 69 at [27]).

28. In Leeton Courthouse the Court observed as follows (at [28], emphasis in original):

28 Those who pine for the past when a party was all but entitled to raise by way of amendment an arguable claim, subject to the payment of costs as compensation, conduct a futile exercise in nostalgia. As the High Court stated in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (at [111] and [112], footnotes omitted):

111 An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.

112 A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

Leave to Amend is Granted to FCCI

29. As properly and candidly conceded by FCCI, there is no satisfactory explanation provided for the delay in filing the application to amend. The decision in Fred Caterson permitting the report of Dr Debus to be relied upon was handed down on 22 April 2026. Two months have since elapsed. The evidence of Chris Moore and Ian Benson was filed by the Council on 9 and 10 June 2026, respectively. Again, no reason is proffered as to why three weeks have passed between the receipt of this evidence and the application to amend being pursued.

30. However, the absence of an explanation for the delay in bringing the application to amend after the handing down of the Fred Caterson decision is not in and of itself fatal (Leeton Courthouse at [38]).

31. I also do not consider to be determinative the unchallenged evidence of Brew that prejudice would be suffered by the Council if the amendment was permitted because she did not “consider that there is now time for the Respondent to prepare and serve evidence in answer to the issue of owl foraging habitat or owl prey”. Brew’s evidence was silent as to why, for example, it was thought by the Council, especially in light of Dr Debus’s evidence, that the issue of the impact of the development on owl foraging would not be an issue in the proceedings. It was not necessary to cross-examine Brew on evidence that was not contained in her affidavit.

32. The Council complained of the expansion in the particulars to paragraph 11 of the amended summons occasioned by the reference to the words “and Reserve”. It argued that the inclusion of these words expanded the area of the Activity beyond the Site, as defined in the amended summons. But as made clear in paragraph 2, to which no objection was made by the Council, the “Reserve” includes the “Site”. For the sake of completeness, the Council somewhat inconsistently took no issue with all of the particulars to paragraph 11 where the words “and Reserve” were inserted.

33. The impact about which the FCCI has always been concerned is that of the Activity at the Site within the Reserve. The inclusion of the words “and Reserve” do not materially expand the geographical ambit of the claims made against the Council. The Reserve, and the Site located within it, is the alleged habitat of the owls that will, according to FCCI, be impacted by the proposed development.

34. Finally, and compellingly, the FCCI took the Court through Dr Debus’s evidence to demonstrate that his evidence was replete with reference to the likely impacts of the proposed development on the Powerful Owl’s foraging and prey habitat (see paragraphs 5, 7a), 7b), 7c), 7d), 7e), 7f), 7g), 10 and 11). This included express reference and discussion as to the “likely impacts” of “light spill on the Powerful Owl’s foraging…habitat” (at paragraphs 5 and all of 7b) and 7c)). To state that the impact of light from the Activity and the sporting fields on the foraging habitat of the Powerful Owl comes as a surprise cannot seriously be maintained, in my view, in light of this evidence.

35. This conclusion is reinforced by the Council’s own expert evidence. For example, Moore refers to the likelihood of the Site providing “foraging habitat for Powerful Owls” and that he looked for evidence of “kill sites” for Powerful Owls when inspecting the Site. Benson was specifically asked to, and did in fact, opine upon the “size of the likely foraging habitat of a pair of Powerful Owls” (paragraph 14 of Benson’s expert report filed 10 June 2026 and his letter of instruction dated 26 May 2026).

36. The Council’s submissions appeared to be premised upon an overly narrow conception of the term “habitat” that excluded foraging and prey areas. It is more than arguable (and almost a matter of judicial notice in a specialist court such as this one), that habitat, especially avian habitat, includes not only areas for roosting and breeding, but also areas for hunting and foraging. Without the latter, the former is unlikely to occur.

37. Finally, it should be recalled that this Court is not a court of strict pleading (Gray v Macquarie Generation (No 3) [2011] NSWLEC 3 at [56] and Xstrata Mangoola Pty Ltd v Muswellbrook Shire Council [2011] NSWLEC 46 at [25]).

38. Weighing up all of the relevant factors which the Court must consider, and having regard to the principles contained in ss 56 to 58 and 64 of the CPA and discussed in the cases referred to above, I am of the opinion that leave to amend paragraph 11 ought to be granted. The issue that FCCI seeks to agitate by the amendments, if not already identified in the amended summons, was plainly highlighted by Dr Debus’s evidence, to which the Council has by reference to the term “habitat” had ample time to respond. If the Council is in fact disadvantaged by the amendments, which I do not accept as argued before me, I do not consider this to be the fault of FCCI, but rather the failure of the Council to properly respond to the evidence of Dr Debus.

Costs

39. The Council has been unsuccessful in resisting the application for leave to amend but, in my opinion, it is appropriate that FCCI ought to pay the Council’s costs thrown away by the amendments.

Orders

40. The formal orders of the Court are therefore as follows:

41. leave is granted to the applicant to amend the amended summons in the form attached to these reasons at annexure ‘A’; and

42. the applicant is to pay the respondent’s costs thrown away occasioned by the amendment.

ANNEXURE A

Annexure A (348 KB, pdf)

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