Young v Parrramatta City Council (No 2) [2006] NSWLEC 662

Young v Parrramatta City Council (No 2) [2006] NSWLEC 662

The applicant's notice of motion was misconceived because neither the Environmental Planning and Assessment Act 1979 nor the Regulation permits an applicant to make or amend a development application so as to seek development consent for deferred commencement. Section 80(3) confers a power on a consent authority or the Court when approving a development application, not a mechanism for lodging such an application. Clause 55 concerns amendment by an applicant before determination with the agreement of the consent authority, and Pt 10 r 1 of the Court Rules does not give the Court power to amend a development application beyond the EP&A Act. Given the earlier finding that the Court had no...

Jurisdiction
Australia
Judgment Date
23 October 2006
Procedural Posture
Class 1 Appeal Proceedings in Relation to Development Application 175/2006 / Ex Tempore Judgment on Applicant's Notice of Motion to Amend the Development Application and Costs Following a Preliminary Question of Law
Outcome
The applicant's notice of motion was dismissed, the Class 1 appeal was dismissed, and the applicant was ordered to pay the Council's costs on the preliminary point of law and of the notice of motion.
Legal Topics
['development Application' 'deferred Commencement Consent' 'amendment of Development Application' 'jurisdiction' 'class 1 Appeal Costs']
['planning and Environment Law' 'civil Procedure' 'costs'] ['development Application' 'deferred Commencement Consent' 'amendment of Development Application' 'jurisdiction' 'class 1 Appeal Costs']

Case Brief

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Procedural Posture

Class 1 Appeal Proceedings in Relation to Development Application 175/2006 / Ex Tempore Judgment on Applicant's Notice of Motion to Amend the Development Application and Costs Following a Preliminary Question of Law

Legal Issues

  1. 1 ['Whether the Court could amend the development application to have it assessed as a deferred commencement consent under s 80(3) of the Environmental Planning and Assessment Act 1979.' "Whether the applicant's Class 1 appeal should be dismissed in light of the earlier finding that the Court had no jurisdiction to determine the development application." 'Whether the respondent should be awarded costs of the notice of motion and of the preliminary question of law.']

Ratio Decidendi

The applicant's notice of motion was misconceived because neither the Environmental Planning and Assessment Act 1979 nor the Regulation permits an applicant to make or amend a development application so as to seek development consent for deferred commencement. Section 80(3) confers a power on a consent authority or the Court when approving a development application, not a mechanism for lodging such an application. Clause 55 concerns amendment by an applicant before determination with the agreement of the consent authority, and Pt 10 r 1 of the Court Rules does not give the Court power to amend a development application beyond the EP&A Act. Given the earlier finding that the Court had no...

Court Disposition

The applicant's notice of motion was dismissed, the Class 1 appeal was dismissed, and the applicant was ordered to pay the Council's costs on the preliminary point of law and of the notice of motion.

Orders

  • ["The Applicant's Notice of Motion dated 11 September 2006 is dismissed." "The Applicant's Class 1 appeal is dismissed." "The Applicant is to pay the Council's costs on the preliminary point of law determined on 1 September 2006." "The Applicant is to pay the Council's costs of the Applicant's Notice of Motion dated...