Aesthete No. 9 Pty Limited v Blue Mountains City Council [2024] NSWLEC 1222

Aesthete No. 9 Pty Limited v Blue Mountains City Council [2024] NSWLEC 1222

The Applicant had not yet complied with s 113(1) of the Environmental Planning and Assessment Regulation 2021 because there was no evidence that it had made an application, in any form and containing the information required by s 113(3), to Blue Mountains City Council as the consent authority to amend the modification application. The Court is not the consent authority, and s 39(2) of the Land and Environment Court Act 1979 does not permit the Court to bypass the requirement that the application first be made to the consent authority. The proper course was to direct the Applicant to apply to the Respondent under s 113(1), require the Respondent to approve or reject the application under s...

Jurisdiction
Australia
Judgment Date
26 April 2024
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Modification Application Sm/45/2015 B / Procedural Ruling on Notice of Motion to Reopen Proceedings and Amend the Modification Application Before Final Determination
Outcome
Directions made; leave to reopen conditionally granted if the Applicant applies to amend the modification application and the Respondent approves the application.
Legal Topics
['amendment of Modification Application' 'reopening Proceedings' 'consent Authority Functions' 'environmental Planning and Assessment Regulation 2021 S 113' 'land and Environment Court Class 1 Appeal' 'vegetation Management Plan Conditions']
['planning and Environment Law' 'practice and Procedure'] ['amendment of Modification Application' 'reopening Proceedings' 'consent Authority Functions' 'environmental Planning and Assessment Regulation 2021 S 113' 'land and Environment Court Class 1 Appeal' 'vegetation Management Plan Conditions']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Modification Application Sm/45/2015 B / Procedural Ruling on Notice of Motion to Reopen Proceedings and Amend the Modification Application Before Final Determination

Legal Issues

  1. 1 ['Whether the Court could grant leave to amend a modification application before the Court before the modification application had been finally determined.' 'Whether s 113 of the Environmental Planning and Assessment Regulation 2021 required the Applicant to apply to the consent authority, rather than directly to the Court, to amend the modification application.' 'Whether the Court exercising Class 1 functions is the consent authority for the purposes of s 113.' 'What procedure should be followed where a modification application subject to Court proceedings is proposed to be amended.' 'Whether condition 83 should be deleted from the consent conditions.']

Ratio Decidendi

The Applicant had not yet complied with s 113(1) of the Environmental Planning and Assessment Regulation 2021 because there was no evidence that it had made an application, in any form and containing the information required by s 113(3), to Blue Mountains City Council as the consent authority to amend the modification application. The Court is not the consent authority, and s 39(2) of the Land and Environment Court Act 1979 does not permit the Court to bypass the requirement that the application first be made to the consent authority. The proper course was to direct the Applicant to apply to the Respondent under s 113(1), require the Respondent to approve or reject the application under s...

Court Disposition

Directions made; leave to reopen conditionally granted if the Applicant applies to amend the modification application and the Respondent approves the application.

Orders

  • ['The Applicant is directed to apply to the Respondent under s 113(1) of the Environmental Planning and Assessment Regulation 2021 to amend the modification application made on 21 December 2021 by 1 May 2024.' 'The Respondent is to approve or reject the application to amend the modification application under s...