Toner Design Pty Ltd v Newcastle City Council [2013] NSWCA 410

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Toner Design Pty Ltd v Newcastle City Council [2013] NSWCA 410 Hearing dates: 15 October 2013 Decision date: 05 December 2013 Before: Basten JA at [1]; Gleeson JA at [28]; Preston CJ of LEC at [29] Decision: (1) Dismiss the appeal. (2) Order the appellant to pay the respondent's costs in this Court. (3) Remit the matter to the Land and Environment Court to deal with the costs of the proceedings before it. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - determination on a separate question by primary judge - whether primary judge erred in construction of statutory provision - whether primary judge erred in law in application of the provision

ENVIRONMENT and PLANNING - whether development classified as designated development - exception where development ancillary to and not proposed to be carried out independently of other development

WORDS and PHRASES - "ancillary to" - "not proposed to be carried out independently of" - Environmental Planning and Assessment Regulation 2000 (NSW), Sch 3 cl 37A Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 77A, 78A, 79, 80 Environmental Planning and Assessment Regulation 2000 (NSW), Sch 3 cll 4, 15, 29, 37A; Land and Environment Court Act 1979 (NSW), s 57 Cases Cited: Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Residents Against Improper Development v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360 Category: Principal judgment Parties: Toner Design Pty Ltd (Appellant) Newcastle City Council (Respondent) Representation: Counsel: