Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) [2013] NSWLEC 146

Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) [2013] NSWLEC 146

The development application lodged by Ironlaw on 2 July 2012 was a development application lodged with the Council within the meaning of cl 113(2) of the Regulation, even though it was incomplete because it was not then accompanied by an environmental impact statement required for designated development. The Council did not reject the application under cl 51, and the absence of the EIS did not prevent the deemed refusal provisions in s 82(1) from being engaged. By 7 September 2012 the deemed refusal period had elapsed, so the appeal under s 97(1)(b) was competent and the Council's motion for summary dismissal failed.

Jurisdiction
Australia
Judgment Date
10 September 2013
Procedural Posture
Class 1 Appeal Under S 97(1)(b) of the Environmental Planning and Assessment Act 1979 Concerning Deemed Refusal of a Development Application / Interlocutory Application by Respondent for Summary Dismissal
Outcome
Respondent's notice of motion for summary dismissal dismissed; appeal may continue as a current appeal.
Legal Topics
['development Application' 'designated Development' 'environmental Impact Statement' 'deemed Refusal Appeal' 'summary Dismissal' 'nunc Pro Tunc Order']
['planning and Environment Law' 'civil Procedure'] ['development Application' 'designated Development' 'environmental Impact Statement' 'deemed Refusal Appeal' 'summary Dismissal' 'nunc Pro Tunc Order']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 97(1)(b) of the Environmental Planning and Assessment Act 1979 Concerning Deemed Refusal of a Development Application / Interlocutory Application by Respondent for Summary Dismissal

Legal Issues

  1. 1 ['Whether the absence of an environmental impact statement when Ironlaw commenced its appeal meant that no development application had been lodged sufficient to engage s 82(1) of the Environmental Planning and Assessment Act 1979 and cl 113 of the Environmental Planning and Assessment Regulation 2000.' "Whether the respondent council's entitlement to reject an incomplete development application under cl 51 of the Environmental Planning and Assessment Regulation 2000 affected the operation of the deemed refusal provisions." 'Whether, if the appeal was premature, the Court could make a nunc pro tunc order treating the appeal as commenced after the deemed refusal period had elapsed.']

Ratio Decidendi

The development application lodged by Ironlaw on 2 July 2012 was a development application lodged with the Council within the meaning of cl 113(2) of the Regulation, even though it was incomplete because it was not then accompanied by an environmental impact statement required for designated development. The Council did not reject the application under cl 51, and the absence of the EIS did not prevent the deemed refusal provisions in s 82(1) from being engaged. By 7 September 2012 the deemed refusal period had elapsed, so the appeal under s 97(1)(b) was competent and the Council's motion for summary dismissal failed.

Court Disposition

Respondent's notice of motion for summary dismissal dismissed; appeal may continue as a current appeal.

Orders

  • ["The respondent's notice of motion filed on 1 February 2013 is dismissed." 'Costs reserved.' 'List the matter for further directions before the Registrar on Friday 13 September 2013.' 'Exhibit A may be returned.']