Kerford Developments Pty Ltd v Albury City Council [2011] NSWLEC 154

Land and Environment Court New South Wales

Medium Neutral Citation: Kerford Developments Pty Ltd v Albury City Council [2011] NSWLEC 154 Hearing dates: 30 August 2011 Decision date: 31 August 2011 Jurisdiction: Class 1 Before: Craig J Decision: 1. The applicant's notice of motion filed on 15 August 2011 is dismissed. 2. The respondent's notice of motion filed on 24 August 2011 is dismissed. 3. No order as to costs. Catchwords: PROCEDURE - interlocutory applications - application to strike out contentions in Statement of Facts and Contentions - whether presence of threatened species on subject land can be raised as a ground on which to refuse development consent -applicable planning instrument biodiversity certified pursuant to Threatened Species Conservation Act 1995 - consideration of savings and transitional provisions of the Threatened Species Act - statutory scheme does not preclude consideration of impact on a threatened species under s 79C of the Environmental Planning and Assessment Act 1979 - motion for separate question under Uniform Civil Procedure Rules, r 28.2 - whether determination of separate question is appropriate - facts and relevant documents still in dispute between the parties and necessary to be agitated at the final hearing - applications dismissed Legislation Cited: Albury Local Environmental Plan 2010 Civil Procedure Act 2005 Crown Lands Act 1989 Environmental Planning and Assessment Act 1979 Threatened Species Conservation Act 1995 Threatened Species Conservation Amendment (Biodiversity Certification) Act 2010 Cases Cited: Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193 Wollongong City Council v Vic Vellar Nominees Pty Ltd [2011] NSWLEC 138 Category: Interlocutory applications Parties: Kerford Developments Pty Ltd (Applicant) Albury City Council (Respondent) Representation: Mr I J Hemmings (Applicant) Mr M Seymour (Respondent) Williams Love and Nicol Lawyers (Applicant) Kell Moore Solicitors (Respondent) File Number(s): 10622 of 2011