Sell & Parker Pty Ltd v NSW Minister for Planning [2015] NSWLEC 130

Land and Environment Court New South Wales

Medium Neutral Citation: Sell & Parker Pty Ltd v NSW Minister for Planning [2015] NSWLEC 130 Hearing dates: 30 July 2015 Date of orders: 30 July 2015 Decision date: 30 July 2015 Jurisdiction: Class 1 Before: Preston CJ Decision: (1) The proceedings are dismissed.

(2) The applicant is to pay the costs of the proceedings of the respondent. Catchwords: PRACTICE AND PROCEDURE – motion for summary dismissal of proceedings – appeal regarding State significant development application – competency of appeal – whether any determination of development application – whether letter from respondent constituted notice of determination of the development application by the consent authority – no actual determination of development application – letter did not constitute notice of determination – at the time appeal was commenced development application not taken to have been determined by refusal – no determination of the consent authority against which the applicant could appeal – proceedings dismissed

COSTS – Court not to make order for costs in Class 1 appeal unless fair and reasonable in the circumstances – whether order for costs fair and reasonable in the circumstances – question of competency of appeal a question of law preliminary to evaluation of merits of application and potentially and actually determinative of proceedings – respondent made offer to applicant prior hearing to discontinue proceedings with no costs order – sufficiently clear that there was no notice of determination that could found an appeal – fair and reasonable to order applicant to pay costs of the respondent Legislation Cited: Environmental Planning and Assessment Act 1979 ss 78A, 81, 82(1), 89C, 89D, 89E, 89F, 89H, 97 Environmental Planning and Assessment Regulation 2000 cll 51, 83-85B, 85A, 100, 113(1) Land and Environment Court Rules 2007 rr 3.7(2), 3.7(3)(a) Category: Principal judgment Parties: Sell & Parker Pty Ltd (Applicant) NSW Minister for Planning (Respondent) Representation: Counsel: Mr P N Lalich (Solicitor) (Applicant) Mr A Shearer (Barrister) (Respondent)