Lenen Pty Ltd v. Tweed Shire Council [1998] NSWLEC 138

Lenen Pty Ltd v. Tweed Shire Council [1998] NSWLEC 138

The development application sought approval for subdivision into management and open space parcels and specified road and infrastructure works under a staged Master Plan, but did not seek consent for any specific hotel, motel or refreshment rooms use. The consent, if granted, would not authorise development for those purposes. Accordingly the application did not fall within the class or description in the Minister's s 101 direction, s 101 had no application, and the appeal was not incompetent under ss 101(3) and 101(9)(a) of the Environmental Planning and Assessment Act 1979.

Jurisdiction
Australia
Judgment Date
28 August 1998
Procedural Posture
Class 1 Proceedings; Appeal Against Deemed Refusal of Development Application S96/135 / Preliminary Legal Question on Whether the Appeal Was Incompetent Under S 101 Before the Merits Hearing
Outcome
Preliminary issue determined in favour of the applicant; the appeal was not incompetent under s 101.
Legal Topics
['development Application' 'deemed Refusal' 'ministerial Direction Under S 101' 'staged Development Consent' 'consent Authority' 'competence of Appeal']
['environmental and Planning Law' 'administrative Law'] ['development Application' 'deemed Refusal' 'ministerial Direction Under S 101' 'staged Development Consent' 'consent Authority' 'competence of Appeal']

Case Brief

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Procedural Posture

Class 1 Proceedings; Appeal Against Deemed Refusal of Development Application S96/135 / Preliminary Legal Question on Whether the Appeal Was Incompetent Under S 101 Before the Merits Hearing

Legal Issues

  1. 1 ["Whether the development application fell within the Minister's s 101 direction for development applications for hotel, motel and refreshment rooms development." 'Whether the appeal was incompetent under ss 101(3) and 101(9)(a) of the Environmental Planning and Assessment Act 1979.' 'If the direction applied, whether a deemed refusal could arise and who was the consent authority.']

Ratio Decidendi

The development application sought approval for subdivision into management and open space parcels and specified road and infrastructure works under a staged Master Plan, but did not seek consent for any specific hotel, motel or refreshment rooms use. The consent, if granted, would not authorise development for those purposes. Accordingly the application did not fall within the class or description in the Minister's s 101 direction, s 101 had no application, and the appeal was not incompetent under ss 101(3) and 101(9)(a) of the Environmental Planning and Assessment Act 1979.

Court Disposition

Preliminary issue determined in favour of the applicant; the appeal was not incompetent under s 101.

Orders

  • ['The exhibits may be returned.' 'The matter will be listed for further directions on a suitable date before the hearing commencing on 28 September 1998.']