Scarf v Shoalhaven City Council [2021] NSWLEC 128

Scarf v Shoalhaven City Council [2021] NSWLEC 128

The Court had no power to grant either notice of motion. In the Modification Appeal, the Council refused the modification application before cl 121B of the EPA Regulation commenced, and s 39(2) of the Land and Environment Court Act 1979 (NSW) did not confer on the Court a function the Council did not have at the time of its determination. Clause 121B did not operate retrospectively or apply merely because the appeal was undetermined. In the BIC Appeal, neither the EPA Act nor the EPA Regulation contained any express or implied power allowing a proponent, council, or the Court on appeal to amend a building information certificate application, and neither s 8.25(3) of the EPA Act nor s 64...

Jurisdiction
Australia
Judgment Date
15 November 2021
Procedural Posture
Class 1 Merits Appeals: an Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 (nsw) Against Refusal of a Modification Application, and an Appeal Under S 8.25 of That Act Against Deemed Refusal of a Building Information Certificate Application / Notices of Motion Dated 1 November 2021 Seeking Leave to Amend the Modification Application and Building Information Certificate Application
Outcome
Both notices of motion dismissed; costs reserved.
Legal Topics
['power to Amend a Modification Application After Cl 121 B of the Environmental Planning and Assessment Regulation 2000 (nsw) Commenced' 'whether Cl 121 B Had Retrospective or Ambulatory Operation in an Appeal' 'scope of S 39 of the Land and Environment Court Act 1979 (nsw)' 'whether a Building Information Certificate Application Can Be Amended' 'discretion to Grant Leave to Amend']
['environmental Planning and Assessment' 'land and Environment Court Procedure' 'development Consent Modification' 'building Information Certificates'] ['power to Amend a Modification Application After Cl 121 B of the Environmental Planning and Assessment Regulation 2000 (nsw) Commenced' 'whether Cl 121 B Had Retrospective or Ambulatory Operation in an Appeal' 'scope of S 39 of the Land and Environment Court Act 1979 (nsw)' 'whether a Building Information Certificate Application Can Be Amended' 'discretion to Grant Leave to Amend']

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Procedural Posture

Class 1 Merits Appeals: an Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 (nsw) Against Refusal of a Modification Application, and an Appeal Under S 8.25 of That Act Against Deemed Refusal of a Building Information Certificate Application / Notices of Motion Dated 1 November 2021 Seeking Leave to Amend the Modification Application and Building Information Certificate Application

Legal Issues

  1. 1 ['Whether the Court had power to amend a modification application lodged with and determined by the Council before cl 121B of the Environmental Planning and Assessment Regulation 2000 (NSW) commenced on 14 July 2021.' 'Whether the Court had power to amend a building information certificate application made under the Environmental Planning and Assessment Act 1979 (NSW).' 'If power existed, whether leave to amend should be refused as a matter of discretion.']

Ratio Decidendi

The Court had no power to grant either notice of motion. In the Modification Appeal, the Council refused the modification application before cl 121B of the EPA Regulation commenced, and s 39(2) of the Land and Environment Court Act 1979 (NSW) did not confer on the Court a function the Council did not have at the time of its determination. Clause 121B did not operate retrospectively or apply merely because the appeal was undetermined. In the BIC Appeal, neither the EPA Act nor the EPA Regulation contained any express or implied power allowing a proponent, council, or the Court on appeal to amend a building information certificate application, and neither s 8.25(3) of the EPA Act nor s 64...

Court Disposition

Both notices of motion dismissed; costs reserved.

Orders

  • ["The Applicant's notice of motion dated 1 November 2021 in proceedings 2021/199188 is dismissed." "The Applicant's notice of motion dated 1 November 2021 in proceedings 2021/199190 is dismissed." 'Costs reserved.']