BIG COUNTRY DEVELOPMENTS PTY LIMITED v. PENRITH CITY COUNCIL [1998] NSWLEC 247 (8 October 1998) [1998] NSWLEC 32

BIG COUNTRY DEVELOPMENTS PTY LIMITED v. PENRITH CITY COUNCIL [1998] NSWLEC 247 (8 October 1998) [1998] NSWLEC 32

The proposed activity for which approval is sought under Part 1 of Chapter 7 of the Local Government Act 1993 is not prohibited by or under the Environmental Planning and Assessment Act 1979, by virtue of s.109B, provided it is carried out in accordance with the existing development consent. The new DCP 27 is relevant but not prohibitory in determining the approval, and construction of condition 18 need not be determined as it is not relevant to the proceedings.

Jurisdiction
Australia
Judgment Date
08 October 1998
Procedural Posture
Appeal / Determination of Referred Questions of Law Under S.36(5) of the Land and Environment Court Act 1979
Outcome
Referred questions determined; orders made for remittal to Assessor for decision per s.36(6)(d) of the Land and Environment Court Act 1979; liberty reserved to restore matter within 14 days.
Legal Topics
['development Consent' 'building Application' 'development Control Plan' 'statutory Interpretation']
['administrative Law' 'planning and Environment'] ['development Consent' 'building Application' 'development Control Plan' 'statutory Interpretation']

Case Brief

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Procedural Posture

Appeal / Determination of Referred Questions of Law Under S.36(5) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the Land and Environment Court should construe condition 18 of the development consent' 'Whether works proposed are prohibited under the EP&A Act and Local Government Act 1993' 'Relevance of the new DCP 27 to determination of the building application' 'Whether the new DCP 27 prohibits approval of the building application']

Ratio Decidendi

The proposed activity for which approval is sought under Part 1 of Chapter 7 of the Local Government Act 1993 is not prohibited by or under the Environmental Planning and Assessment Act 1979, by virtue of s.109B, provided it is carried out in accordance with the existing development consent. The new DCP 27 is relevant but not prohibitory in determining the approval, and construction of condition 18 need not be determined as it is not relevant to the proceedings.

Court Disposition

Referred questions determined; orders made for remittal to Assessor for decision per s.36(6)(d) of the Land and Environment Court Act 1979; liberty reserved to restore matter within 14 days.

Orders

  • ['Questions 1(a) and 1(b) need not be determined as they are not relevant to the proceedings.' 'Question 1(c) answered No.' 'Question 2 answered Yes.' 'Question 3 answered No.' 'Determinations remitted to the Assessor.' 'Liberty reserved to restore matter to the Assessor within 14 days.' 'Exhibits to remain on Court...