Settlers Estate Pty Ltd v Penrith City Council [2021] NSWCA 13

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Settlers Estate Pty Ltd v Penrith City Council [2021] NSWCA 13 Hearing dates: 12 February 2021 Date of orders: 23 February 2021 Decision date: 23 February 2021 Before: Gleeson JA at [1]; Payne JA at [2]; Preston CJ of LEC at [3] Decision: The Court: (1) Extends time under Uniform Civil Procedure Rules 2005 rule 51.10(2) for the filing of a summons seeking leave to appeal against the decision and orders of Pepper J on 24 July 2020; (2) Dismisses the summons seeking leave to appeal against the decision of Pepper J on 24 July 2020; (3) Dismisses the summons seeking leave to appeal against the decision of Pepper J on 4 September 2020; (4) Orders the applicants to pay the respondent's costs of the proceedings in this Court. Catchwords: APPEAL – breach of development consent –construction certificate part of development consent – drainage line not constructed in location shown on construction certificate plan – construction of construction certificate plan – whether misconstruction – judicial notice – whether common knowledge – refusal of leave to reopen – whether denial of procedural fairness – whether incorrect factual or legal assumption – leave to appeal refused Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.2, 4.16, 6.8 Environmental Planning and Assessment Regulation 2000 cl 145 Evidence Act 1995 s 144 Supreme Court Act 1970 s 101(2)(e) Cases Cited: Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (2017) 96 NSWLR 434; [2017] NSWCA 263 Burwood Council v Ralan Burwood Ltd (2014) 206 LGERA 40 Gattellaro v Westpac Banking Corporation (2004) 204 ALR 258; [2004] HCA 6 Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697; [2013] NSWCA 145 Penrith City Council v Settlers Estate Pty Ltd [2020] NSWLEC 99 Penrith City Council v Settlers Estate Pty Ltd (No 2) [2020] NSWLEC 128 Ralph Lauren 57 Pty Ltd v Byron Shire Council (2014) 199 LGERA 424; [2014] NSWCA 107 Category: Principal judgment Parties: Settlers Estate Pty Ltd (First applicant) Statewide Planning Pty Ltd (Second applicant) George W Pty Ltd (Third applicant) Eastern O'Connell Pty Ltd (Fourth applicant) Penrith City Council (Respondent) Representation: Counsel: Mr P Tomasetti SC (Applicants) Mr P W Larkin SC, with Mr T To (Respondent)