Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264

Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264

The development application was not made on or before 26 November 2021. A development application is made only when there has been substantial compliance with the statutory form and manner requirements. By the commencement date of the 2021 SEPP, the application had not been notified as lodged on the NSW planning portal, the required fee had not been paid, and the required plan had not accompanied the application. Clause 50(9) deemed the application not lodged until the notified fees were paid, and the primary judge did not err in deciding that the savings provision did not apply. Accordingly, the 2021 SEPP governed the development application and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
02 November 2023
Procedural Posture
Application for Leave to Appeal and Appeal on a Question of Law From a Decision of the Land and Environment Court of New South Wales in Class 1 Proceedings Concerning a Development Application / Court of Appeal; Leave to Appeal Granted and Appeal Dismissed
Outcome
Leave to appeal granted; appeal dismissed; applicant ordered to pay the respondent's costs of the application for leave to appeal and the appeal.
Legal Topics
['development Applications' 'savings and Transitional Provisions' 'nsw Planning Portal Lodgement' 'payment of Development Application Fees' 'requirements for Documents Accompanying a Development Application' 'state Environmental Planning Policy (housing) 2021' 'environmental Planning and Assessment Regulation 2000']
['planning and Environment Law' 'administrative Law' 'statutory Interpretation'] ['development Applications' 'savings and Transitional Provisions' 'nsw Planning Portal Lodgement' 'payment of Development Application Fees' 'requirements for Documents Accompanying a Development Application' 'state Environmental Planning Policy (housing) 2021' 'environmental Planning and Assessment Regulation 2000']

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Procedural Posture

Application for Leave to Appeal and Appeal on a Question of Law From a Decision of the Land and Environment Court of New South Wales in Class 1 Proceedings Concerning a Development Application / Court of Appeal; Leave to Appeal Granted and Appeal Dismissed

Legal Issues

  1. 1 ['Whether development application DA 21/1251 was made on or before 26 November 2021 for the purpose of cl 2(1)(a) of Sch 7A to the State Environmental Planning Policy (Housing) 2021.' 'Whether lodgement of a development application on the NSW planning portal equated with the making of the application for the savings provision.' 'Whether cl 50(9) of the Environmental Planning and Assessment Regulation 2000 (NSW) meant the development application was taken not to have been lodged until notified fees were paid.' 'Whether the development application substantially complied with the requirement to be accompanied by an A4 plan of the building indicating height and external configuration as erected in relation to its site.' 'Whether the primary judge failed to determine for himself whether the statutory requirements for making the development application had been met.']

Ratio Decidendi

The development application was not made on or before 26 November 2021. A development application is made only when there has been substantial compliance with the statutory form and manner requirements. By the commencement date of the 2021 SEPP, the application had not been notified as lodged on the NSW planning portal, the required fee had not been paid, and the required plan had not accompanied the application. Clause 50(9) deemed the application not lodged until the notified fees were paid, and the primary judge did not err in deciding that the savings provision did not apply. Accordingly, the 2021 SEPP governed the development application and the appeal was dismissed.

Court Disposition

Leave to appeal granted; appeal dismissed; applicant ordered to pay the respondent's costs of the application for leave to appeal and the appeal.

Orders

  • ['Grant leave to appeal against the decision of Moore J of 16 December 2022 in the form of the draft notice of appeal dated 14 March 2023.' 'Direct the applicant to file the appeal within 7 days of this order.' 'Dismiss the appeal.' "Order the applicant to pay the respondent's costs of the application for leave to...