Marscon Pty Limited v Holroyd City Council [2003] NSWLEC 22

> Reported Decision : (2003) 123 LGERA 323

Land and Environment Court of New South Wales

CITATION : Marscon Pty Limited v Holroyd City Council [2003] NSWLEC 22 APPLICANT: Marscon Pty Limited PARTIES : RESPONDENT: Holroyd City Council FILE NUMBER(S) : 10511 of 2002 CORAM: Bignold J KEY ISSUES: Question of Law :- Whether proposed development prohibited development in terms of LEP. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97 Baker v Cumberland County Council 1 LGRA 321; CASES CITED: Ku-Ring-Gai Municipal Council v Geoffrey Twibill and Associates (1979) 39 LGRA 154; Shire of Perth v O'Keefe (1964) 110 CLR 529 DATES OF HEARING: 05/02/03 DATE OF JUDGMENT: 02/10/2003

APPLICANT: Mr A Galasso, Barrister SOLICITORS Coleman and Grieg

LEGAL REPRESENTATIVES:

RESPONDENT: Ms J Jagot, Barrister SOLICITORS McKees Solicitors

JUDGMENT:

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Matter No . . 10511 of 2002 Coram : Bignold J 10 February 2003

MARSCON PTY LIMITED

Applicant

v

HOLROYD CITY COUNCIL

Respondent

JUDGMENT

INTRODUCTION

1. A preliminary question of law has been raised by the Council in pending class 1 proceedings involving an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 in respect of the Council's deemed refusal of the Applicant's development application to demolish existing buildings on a development site comprising three lots situate at the corner of Great Western Highway and Centenary Avenue, Wentworthville and to erect a new five storey building over basement carparking for the purposes of a mixed residential and commercial development. The hearing of the appeal on the merits has been allocated for 24 to 26 February 2003. However, if the question of law raised by the Council is answered in the affirmative, as the Council contends it should be, the result will be that the proposed development is prohibited development and the appeal must be dismissed on that account.