Defence Housing Australia v Randwick City Council [2012] NSWLEC 1181

Land and Environment Court New South Wales

Medium Neutral Citation: Defence Housing Australia v Randwick City Council [2012] NSWLEC 1181 Hearing dates: 27 April 2012 and written submissions received on 2 May 2012 Decision date: 09 July 2012 Jurisdiction: Class 1 Before: Dixon C; Fakes C Decision: 1.The appeal is dismissed. 2.The exhibits are returned. Catchwords: DEVELOPMENT APPLICATION - Crown development; tree removal - impact on streetscape Legislation Cited: Environment Protection and Biodiversity Conservation Act 1999 Threatened Species Conservation Act 1995 Environmental Planning and Assessment Act 1979 Randwick Local Environmental Plan 1998 Cases Cited: Brown v Randwick City Council [2011] NSWLEC 172 MLC Properties v Camden Council (1997) 96 LGERA 52 R v Marks; Ex parte Australian Building, Construction Employees Builders Labourers' Federation (1981) 147 CLR at 484-485 Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 Category: Principal judgment Parties: Defence Housing Australia (Applicant) Randwick City Council (Respondent) Representation: Counsel Ms S Duggan SC (Applicant) Mr P Rigg, Solicitor (Respondent) Solicitors Piper Alderman Lawyers (Applicant) Norton Rose (Respondent) File Number(s): 10992 of 2011

Judgment 1The applicant, Defence Housing Australia, is a Commonwealth authority within the meaning of s 88(1) of the Environmental Planning and Assessment Act 1979 (the Act). On 3 March 2011 it lodged a Crown development application (DA/315/2011) with Randwick City Council for the subdivision of land at 4R Argyle Crescent, Randwick and the construction of eight semi-detached dwellings, garages and associated works. 2Division 4 of Part 4 of the Act specifies the determination process for Crown development applications. Section 89 states: Determination of Crown development applications 89 Determination of Crown development applications (1) A consent authority (other than the Minister) must not: (a) refuse its consent to a Crown development application, except with the approval of the Minister, or (b) impose a condition on its consent to a Crown development application, except with the approval of the applicant or the Minister. (2) If the consent authority fails to determine a Crown development application within the period prescribed by the regulations, the applicant or the consent authority may refer the application: (a) to the Minister, if the consent authority is not a council, or (b) to the applicable regional panel, if the consent authority is a council. (2A) A Crown development application for which the consent authority is a council must not be referred to the Minister unless it is first referred to the applicable regional panel. (3) An applicable regional panel to which a Crown development application is referred may exercise the functions of the council as a consent authority (subject to subsection (1)) with respect to the application. (4) A decision by a regional panel in determining a Crown development application is taken for all purposes to be the decision of the council. (5) If an applicable regional panel fails to determine a Crown development application within the period prescribed by the regulations, the applicant or the panel may refer the application to the Minister. (6) The party that refers an application under this section must notify the other party in writing that the application has been referred. (7) When an application is referred under this section to an applicable regional panel or the Minister, the consent authority must, as soon as practicable, submit to the panel or the Minister: (a) a copy of the development application, and (b) details of its proposed determination of the development application, and (c) the reasons for the proposed determination, and (d) any relevant reports of another public authority. (8) An application may be referred by a consent authority or applicable regional panel before the end of a relevant period referred to in subsection (2) or (5). 3The prescribed periods referred to in s 89 are defined in cl 113B of the Environmental Planning and Assessment Regulation 2000. It states: 113B Period after which Crown development applications may be referred to Minister or regional panel (1) For the purposes of section 89 (2) of the Act, the prescribed period is 70 days after the Crown development application is lodged with the consent authority. (2) For the purposes of section 89 (5) of the Act, the prescribed period is 50 days after the Crown development application is referred to the applicable regional panel under section 89 (2) (b) of the Act. 4In this case, the Crown development application has not been referred to the regional panel or the Minister. Instead, after the prescribed period had lapsed, on 1 November 2011 the applicant lodged a development appeal with the Court under s 97(1) of the Act against the Council's deemed refusal of the Crown development application. 5After the Class 1 appeal had been filed, the Council resolved on 1 November 2011, to refuse the Crown development application. It notified the applicant of its determination on 8 November 2011.