AUSTRALAND HOLDINGS PTY LTD v. HORNSBY COUNCIL 18 June 1998 [1998] NSWLEC 17

Land and Environment Court of New South Wales

CITATION : AUSTRALAND HOLDINGS PTY LTD v. HORNSBY COUNCIL 18 June 1998 [1998] NSWLEC 17 PARTIES : AUSTRALAND HOLDINGS PTY LTD v. HORNSBY COUNCIL 18 June 1998 FILE NUMBER(S) : 10338 & 30078 of 1997 CORAM: Lloyd J KEY ISSUES: :- Environmental Planning and Assessment Act 1979, subss 94(1), (2), (7) & (8) LEGISLATION CITED: Land and Environment Court Act 1979, s 56A Land and Environment Court Rules 1996, Pt 13 r 35 Gallo v Dawson (1990) 64 ALJR 458 at 459; Jackamarra v Krakouer [1998] HCA 27; (1998) 8 Leg Rep 33 at 35; Palata Investments Ltd v Burt and Sinfield Ltd [1985] 1 WLR 942 at 946; Vilenius v Heinegar (1962) 36 ALJR 200 at 201; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; CASES CITED: Coulton v Holcombe (1986) 162 CLR 1 at 8; Holcombe v Coulton (1988) 17 NSWLR 71; Coles v Woollahra Municipal Council (1986) 59 LGRA 133; Trehy and Ingold v Gosford City Council (1995) 87 LGERA 262; R v Immigration Appeal Tribunal; Ex parte Khan [1983] 1 QB 790 ; In North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435; Holcombe v Coulton DATES OF HEARING: 5 June 1998 DATE OF JUDGMENT: 06/18/1998

M H Tobias QC & D P Wilson LEGAL REPRESENTATIVES: B J Preston

JUDGMENT:

19 Background

1. This is an application by Hornsby Council (Athe Council@) for an extension of time within which to institute an appeal under s 56A of the Land and Environment Court Act 1979 against the decision of an assessor of the Court. The Land and Environment Court Rules 1996 Pt 13 r 35 provide that an appeal under s 56A of the Act must be instituted within twenty eight days after the order or decision is made or within such extended time as the Court may fix. Any such appeal is limited to a question of law. The parties agreed that in the event that an extension of time is granted, there are no additional submissions that they would wish to make on the appeal, so that the appeal itself may also be determined. 2. The proceeding before the assessor was an appeal by Australand Holdings Pty Ltd (AAustraland@) under s 97 of the Environmental Planning and Assessment Act 1979 (Athe Act@) against the failure of the Council to determine a development application for a residential subdivision. In a reserved judgment the assessor allowed the appeal and granted development consent subject to conditions. One of the conditions is the subject of the proposed appeal under s 56A of the Land and Environment Court Act. The Council submits that the assessor erred in law in imposing the condition. The Council seeks the substitution of the condition by another condition. The condition imposed by the assessor is as follows: A30. The payment of a contribution towards the cost of community facilities, public works and open space and recreation facilities in accordance with ss 94 and 94A of the Environmental Planning and Assessment Act 1979. The contribution per additional lot if paid during 1996/97 financial year shall be $3,601.29, it being noted that there are 33 additional lots. This amount is to be paid prior to the release of the final plan of subdivision.