Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2022] NSWLEC 150

Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2022] NSWLEC 150

The development application was not 'made' before 26 November 2021 because it was not fully compliant with the Environmental Planning and Assessment Regulation 2000, as necessary plans required by Sch 1, cl 2(d) were only provided on 1 December 2021 and the fee was paid on 9 December 2021; thus, the savings provision in the 2021 SEPP did not apply.

Parties
Applicant: Hinkler Ave 1 Pty Limited; Respondent: Sutherland Shire Council
Jurisdiction
Australia
Judgment Date
16 December 2022
Procedural Posture
Class 1 Merit Appeal / Determination of Separate Question Pursuant to Pt 28 R 28.2 of the Uniform Civil Procedure Rules 2005
Outcome
Separate question answered in the negative; Further Amended Notice of Motion dismissed; costs reserved; exhibits returned.
Legal Topics
Development Application Lodgement, Savings and Transitional Provisions, Environmental Planning Policy Interpretation
Planning and Environment Development Application Lodgement Savings and Transitional Provisions Environmental Planning Policy Interpretation

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Parties

Hinkler Ave 1 Pty Limited

Applicant

Sutherland Shire Council

Respondent

Procedural Posture

Class 1 Merit Appeal / Determination of Separate Question Pursuant to Pt 28 R 28.2 of the Uniform Civil Procedure Rules 2005

Legal Issues

  1. 1 When is a development application submitted through the NSW Planning Portal to be regarded as ‘made’ under the Environmental Planning and Assessment Regulation 2000?
  2. 2 Does the savings provision in cl 2(1)(a), Sch 7A of State Environmental Planning Policy (Housing) 2021 protect the applicant’s development application so that it is determined under the repealed State Environmental Planning Policy (Affordable Rental Housing) 2009?

Ratio Decidendi

The development application was not 'made' before 26 November 2021 because it was not fully compliant with the Environmental Planning and Assessment Regulation 2000, as necessary plans required by Sch 1, cl 2(d) were only provided on 1 December 2021 and the fee was paid on 9 December 2021; thus, the savings provision in the 2021 SEPP did not apply.

Court Disposition

Separate question answered in the negative; Further Amended Notice of Motion dismissed; costs reserved; exhibits returned.

Orders

  • Order pursuant to Pt 28 r 28.2 of the Uniform Civil Procedure Rules 2005 that the following question be determined separately from any other question arising in the proceedings: Is development application DA 21/1251 to be regarded as having been made on or before 23 November 2021 for the purpose of cl 2(1)(a) of Sch...
  • In answer to the separate question: No.