CLAYMIN PTY LIMITED v. MULWAREE SHIRE COUNCIL [1998] NSWLEC 163 (21 July 1998) [1998] NSWLEC 49

CLAYMIN PTY LIMITED v. MULWAREE SHIRE COUNCIL [1998] NSWLEC 163 (21 July 1998) [1998] NSWLEC 49

Because the applicant did not appeal within 28 days after the council's final determination, SEPP 37 no longer continued to apply to the development application, including cl 20. The application nevertheless remained on foot and the appeal was extant. As the parties agreed that the proposed development did not fall within any category of designated development under Sch 3 to the EPA Regulation, the Court could determine the development consent appeal without an EIS.

Jurisdiction
Australia
Judgment Date
21 July 1998
Procedural Posture
Class 1 Appeal Against Refusal of Development Consent Under S 97 of the EPA Act / Determination of a Preliminary Question of Law Whether the Application May Be Granted Consent Without the Preparation and Exhibition of an Environmental Impact Statement
Outcome
The preliminary question was answered Yes: development consent may be granted without the preparation and exhibition of an EIS.
Legal Topics
['development Consent' 'designated Development' 'environmental Impact Statement' 'sepp 37 Continued Mines and Extractive Industries' 'extractive Industry' 'preliminary Question of Law']
['environmental Planning Law' 'land and Environment Court Proceedings'] ['development Consent' 'designated Development' 'environmental Impact Statement' 'sepp 37 Continued Mines and Extractive Industries' 'extractive Industry' 'preliminary Question of Law']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Development Consent Under S 97 of the EPA Act / Determination of a Preliminary Question of Law Whether the Application May Be Granted Consent Without the Preparation and Exhibition of an Environmental Impact Statement

Legal Issues

  1. 1 ["Whether the development application remained subject to SEPP 37 after no appeal was lodged within 28 days after the council's determination." "Whether the council's opinion under cl 20(1)(b) of SEPP 37 meant the proposal was designated development requiring an Environmental Impact Statement." 'Whether development consent may be granted without the preparation and exhibition of an Environmental Impact Statement.']

Ratio Decidendi

Because the applicant did not appeal within 28 days after the council's final determination, SEPP 37 no longer continued to apply to the development application, including cl 20. The application nevertheless remained on foot and the appeal was extant. As the parties agreed that the proposed development did not fall within any category of designated development under Sch 3 to the EPA Regulation, the Court could determine the development consent appeal without an EIS.

Court Disposition

The preliminary question was answered Yes: development consent may be granted without the preparation and exhibition of an EIS.

Orders

  • ['The answer to the question raised by the respondent as a preliminary point of law is "Yes".' 'No order as to costs in respect of the determination of the preliminary question.' 'The exhibits may be returned.']