Austral Monsoon Industries Pty Limited v Pittwater Council [2009] NSWCA 154

Reported Decision: 75 NSWLR 169166 LGERA 436[2010] ALMD 888

New South Wales Court of Appeal

CITATION: Austral Monsoon Industries Pty Limited v Pittwater Council [2009] NSWCA 154 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25 March 2009

JUDGMENT DATE: 18 June 2009

JUDGMENT OF: Spigelman CJ at 1; McColl JA at 130; Handley AJA at 131

1 The appeal and first cross-appeal are allowed. 2 Set aside Order 3 of the orders made 28 April 2008. 3 In place of Order 3 of the orders made on 28 April 2008, declare that: (i) The opinion of the Minister as expressed in the "Record of Minister's Opinion for the Purposes of Clause 6 of the State Environmental Planning Policy (State Significant Development) 2005", made by the Minister and dated 3 May 2007, is valid in respect of development application No DA-144-6-2005-i lodged with the Minister on 10 June 2005. (ii) The Minister for Planning is the consent authority in respect of development application No DA-144-6-2005-i lodged with the Minister on 10 June 2005. DECISION: (iii) Development application No DA-144-6-2005-i lodged with the Minister on 10 June 2005 remains a development application lodged pursuant to the Environmental Planning and Assessment Act 1979 in the form lodged at that time and is able to be determined by the Minister in accordance with the provisions of that Act. 4 Set aside Order 1 of the orders made on 5 May 2008 as to the costs of the proceedings below. 5 In place of Order 1 of the orders made on 5 May 2008 as to the costs of the proceedings below, order that the first respondent pay the appellant's costs of the proceedings below as agreed or assessed. 6 Grant leave to the first respondent to file the second cross-appeal. 7 The second cross-appeal is dismissed. 8 The first respondent pay the appellant's and the second respondent's costs of these proceedings.