Basemount Pty Limited & Or v Baulkham Hills Shire Council [2001] NSWLEC 95

Basemount Pty Limited & Or v Baulkham Hills Shire Council [2001] NSWLEC 95

The amended plans involved substantial changes, particularly the creation of a whole new level of parking, deletion of level four of building B, changes to the roof line and repositioning or deletion of units. The resulting development was different from that considered by the council and its environmental impacts had not been assessed. Because council had not determined that development, granting leave would require the Court to hear an appeal that was not from a council determination and would exceed the Court's jurisdiction.

Jurisdiction
Australia
Judgment Date
17 April 2001
Procedural Posture
Development Application Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 / Notice of Motion Seeking Leave Under Pt 13 R 16 of the Land and Environment Court Rules 1996 to Substitute Amended Plans at the Hearing of the Appeal
Outcome
Motion refused; costs reserved.
Legal Topics
['development Applications' 'amended Plans' 'substantially the Same Development' 'council Determination' 'court Jurisdiction']
['planning and Environment Law'] ['development Applications' 'amended Plans' 'substantially the Same Development' 'council Determination' 'court Jurisdiction']

Case Brief

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Procedural Posture

Development Application Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 / Notice of Motion Seeking Leave Under Pt 13 R 16 of the Land and Environment Court Rules 1996 to Substitute Amended Plans at the Hearing of the Appeal

Legal Issues

  1. 1 ['Whether the applicant should be granted leave to rely upon amended plans at the hearing of the appeal.' 'Whether the amended plans involved substantial alterations to the development considered by the council.' 'Whether the proposed development in the amended plans had been determined by the council so as to support an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979.' 'Whether granting leave would cause the Court to hear an appeal in respect of a development application which council had never considered.']

Ratio Decidendi

The amended plans involved substantial changes, particularly the creation of a whole new level of parking, deletion of level four of building B, changes to the roof line and repositioning or deletion of units. The resulting development was different from that considered by the council and its environmental impacts had not been assessed. Because council had not determined that development, granting leave would require the Court to hear an appeal that was not from a council determination and would exceed the Court's jurisdiction.

Court Disposition

Motion refused; costs reserved.

Orders

  • ['The motion for leave to rely upon amended plans be refused.' 'Costs reserved.' 'The council file any submissions in support of its application for costs within seven days.' "The applicant to file any submissions in reply within seven days of receipt of the council's submissions." 'The exhibits be returned.']