Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2022] NSWLEC 150

Land and Environment Court New South Wales

Medium Neutral Citation: Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2022] NSWLEC 150 Hearing dates: 27 October, 2 November and 9 December 2022 Date of orders: 16 December 2022 Decision date: 16 December 2022 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [78] Catchwords: SEPARATE QUESTION ‑ Class 1 merit appeal ‑ application for determination concerning provisions of the Environmental Planning and Assessment Regulation 2000 (the 2000 Regulation) as to when a development application submitted through the NSW Planning Portal is to be regarded as "made" ‑ when the development application was to be taken as "made" determinative of whether a repealed State Environmental Planning Policy or its replacement State Environmental Planning Policy applied to the proposed development ‑ consideration of provisions of the Regulation - development application not "made" until lodged on NSW Planning Portal ‑ requirement that application fee be paid prior to development application being taken to be lodged ‑ fee not paid by date of repeal and replacement ‑ development application not preserved by savings provision in replacement State Environmental Planning Policy ‑ development application to be determined pursuant to State Environmental Planning Policy (Housing) 2021 Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.7(1), 9.45 and 9.46 Environmental Planning and Assessment Regulation 2000, cll 50, 51, 54, 56, 77, 256 and Sch 1, cl 2(1)(d) Environmental Planning and Assessment Regulation 2021 State Environment Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Housing) 2021, Sch 7A, cl 2(1)(a) Uniform Civil Procedure Rules 2005, r 28.2 Cases Cited: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 Cranky Rock Road Action Group Inc & Anor v Cowra Shire Council & Ors (2006) 150 LGERA 81; [2006] NSWCA 339 Commitment Pty Ltd v Georges River Council; (No 2) [2022] NSWLEC 94 Hallinan and Ors v Transport for NSW [2022] NSWLEC 119 Idoport Pty Limited v National Australia Bank Limited (15) [2000] NSWSC 1215 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 Pyramid Consulting Pty Ltd v Georges River Council [2022] NSWLEC 141 Category: Principal judgment Parties: Hinkler Ave 1 Pty Limited (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: Mr A Pickles SC (Applicant) Ms J Reid, barrister (Respondent)