Corbett Constructions Pty Ltd v Wollondilly Shire Council [2017] NSWLEC 135

Corbett Constructions Pty Ltd v Wollondilly Shire Council [2017] NSWLEC 135

The Council allowed Corbett a further period, ultimately until 21 October 2016, to provide the additional information requested on 11 July 2016. Because Corbett provided the requested information on 18 October 2016, cl 109 stopped the deemed refusal clock from 11 July 2016 until 18 October 2016. On that basis the appeal was commenced within time, the Court had jurisdiction, and the Council's motion to dismiss as incompetent failed.

Jurisdiction
Australia
Judgment Date
09 October 2017
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Consent / Respondent's Notice of Motion Seeking Dismissal as Incompetent and Commenced Out of Time
Outcome
Respondent Council's Notice of Motion dismissed; Council ordered to pay the applicant's costs of the motion.
Legal Topics
['deemed Refusal of Development Application' 'development Consent Appeal Time Limits' 'request for Additional Information' 'calculation of Assessment Period' 'costs in Class 1 Proceedings']
['planning and Environment Law' 'practice and Procedure'] ['deemed Refusal of Development Application' 'development Consent Appeal Time Limits' 'request for Additional Information' 'calculation of Assessment Period' 'costs in Class 1 Proceedings']

Case Brief

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Consent / Respondent's Notice of Motion Seeking Dismissal as Incompetent and Commenced Out of Time

Legal Issues

  1. 1 ['Whether the Class 1 proceedings appealing a deemed refusal were commenced within the prescribed six month period under s 97 of the Environmental Planning and Assessment Act 1979.' "Whether the Respondent Council's request for additional information dated 11 July 2016 stopped the deemed refusal clock until 8 August 2016 or until 18 October 2016." 'Whether Corbett was taken to have notified the consent authority that the requested information would not be provided after the expiry of the initial 28 day period.' 'Whether the Respondent Council allowed a further period of time for provision of the requested information under cl 54(6)(b) of the Environmental Planning and Assessment Regulation 2000.']

Ratio Decidendi

The Council allowed Corbett a further period, ultimately until 21 October 2016, to provide the additional information requested on 11 July 2016. Because Corbett provided the requested information on 18 October 2016, cl 109 stopped the deemed refusal clock from 11 July 2016 until 18 October 2016. On that basis the appeal was commenced within time, the Court had jurisdiction, and the Council's motion to dismiss as incompetent failed.

Court Disposition

Respondent Council's Notice of Motion dismissed; Council ordered to pay the applicant's costs of the motion.

Orders

  • ["Wollondilly Shire Council's Notice of Motion filed 22 August 2017 is dismissed." "Wollondilly Shire Council is to pay Corbett Constructions Pty Ltd's costs of the motion."]