Olivia Ross v Patrick Lane (No 2) [2021] NSWLEC 121

Land and Environment Court New South Wales

Medium Neutral Citation: Olivia Ross v Patrick Lane (No 2) [2021] NSWLEC 121 Hearing dates: 13 October 2021; written submissions by 22 October Date of orders: 4 November 2021 Decision date: 04 November 2021 Jurisdiction: Class 4 Before: Moore J Decision: See orders a [157] Catchwords: JUDICIAL REVIEW - challenge to validity of development consent - challenge raises failure of consent authority to address the provisions of State Environmental Planning Policy 65 (the SEPP) - did the SEPP give rise to a jurisdictional prerequisite required to be determined objectively - SEPP to be taken as requiring jurisdictional determination - objective factual consideration of the jurisdictional requirement – proposed development not "the substantial redevelopment or the substantial refurbishment of an existing building" - development application did not trigger requirement to comply with the SEPP - summons dismissed. COSTS - costs ordinarily follow the event - no basis to depart from presumption - consent authority enters submitting appearance save as to costs - Applicant ordered to pay the First Respondent's costs Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15 and 9.45 Land and Environment Court Act 1979, s 25B State Environmental Planning Policy No 65 Design Quality of Residential Apartment Development, cll 2, 4 and Sch 1 Sydney Local Environmental Plan 2012 Sydney Development Control Plan 2012 Cases Cited: Barton Securities Limited v Warringah Council & Others (2009) 170 LGERA 223; [2009] NSWLEC 179 Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2017] NSWCA 188 Moto Projects (No 2) Pty Limited v North Sydney Council (1999) 106 LGERA 298 Olivia Ross v Patrick Lane [2021] NSWLEC 61 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 Category: Principal judgment Parties: Olivia Ross (Applicant) Patrick Lane (First Respondent) Sydney City Council (Second Respondent) Representation: Counsel: Mr G Farland and Ms L Sims, barristers (Applicant) Ms J Reid, barrister (First Respondent) Submitting appearance (Second Respondent)