Hainbury Pty Limited v Campbelltown City Council [2007] NSWLEC 713

Land and Environment Court of New South Wales

CITATION : Hainbury Pty Limited v Campbelltown City Council [2007] NSWLEC 713

APPLICANT: Hainbury Pty Limited (ACN 003 811 685) PARTIES : RESPONDENT: Campbelltown City Council

FILE NUMBER(S) : 10659 of 2007

CORAM: Lloyd J

KEY ISSUES: Jurisdiction :- notice of determination - appeal lodged - refusal of consent - deemed refusal - appeal is out of time - summary dismissal - costs

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 82(1), s 82A, s 97(1) Environmental Planning and Assessment Regulation 2000 cl 113(1)

CASES CITED: Grant v Kiama [2006] NSWLEC 70

DATES OF HEARING: 21 September 2007

EX TEMPORE JUDGMENT DATE : 21 September 2007

APPLICANT: Mr. J A Ayling SC & Mr. R Keller SOLICITORS: LEGAL REPRESENTATIVES: Davis Legal

DEFENDENT: Mr. A Seton (sol) Marsdens Law Group

JUDGMENT: - 9 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Lloyd J

Friday, 21 September 2007

LEC No. 10659 of 2007

HAINBURY PTY LIMITED v CAMBELLTOWN CITY COUNCIL [2007] NSWLEC 713

EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a notice of motion by the respondent, Campbelltown City Council, that the proceedings be summarily dismissed on the ground that the court has no jurisdiction to hear the matter. The relevant facts may be briefly described. 2 On 1 December 2005, the council received a development application for a grocery shop and a second development application for associated signage in relation to two shops in Minto. On or about 31 May 2006 a notice of determination was sent to the applicant in relation to the grocery shop. On the same day a notice of determination was sent to the applicant in relation to the application for associated signage. 3 On or about 25 May 2007 the applicant requested the respondent to review its determination of both applications pursuant to s 82A of the Environmental Planning and Assessment Act 1979 (the EP&A Act). On 13 July 2007, the applicant lodged an appeal in Class 1 of the Court's jurisdiction against the refusal of the consent for the shop and the sign, and against the deemed refusal by the failure of the council to determine on review the application under s 82A of the Act. 4 In my opinion, for reasons which I can shortly state, the council's notice of motion must be upheld; that is, there is no jurisdiction in the court to determine the appeal. 5 The determination of the question turns upon a number of provisions of the EP&A Act. Firstly, s 97(1) states: An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application (including a determination on a review under section 82A) may appeal to the court within 12 months after: (a) the date on which the applicant received notice, given in accordance with the regulations of the determination of that application, or (b) the date on which that application is taken to have been determined under section 82(1). 6 The reference to s 82(1) is also relevant to the questions before the court. Section 82(1) states: A consent authority that has not determined a development application within the relevant period prescribed by the regulations applicable to the development the subject of the development application is, for the purpose only of s 97, taken to have determined the application by refusing consent on the date on which the period expires. 7 The "relevant period prescribed by the regulations" referred to in s 82(1) is found in cl 113(1) of the Environmental Planning and Assessment Regulation 2000: (1) For the purpose of section 82(1) of the Act, a development application is taken to be refused if a consent authority has not determined the application within: (a) 40 days, except in the case of development referred to in paragraph (b)… 8 The only other relevant provision of the EP&A Act is s 82A, which is as follows: