Lithgow City Council v Newera Defendo Pty Ltd [2019] NSWLEC 188

Lithgow City Council v Newera Defendo Pty Ltd [2019] NSWLEC 188

The plain language of cl 20B(2)(b) of the Infrastructure SEPP does not require that the relevant environmental planning instrument be other than the Infrastructure SEPP itself. Therefore, the solar voltaic array was lawfully authorised as complying development under the SEPP, and the second complying development certificate is valid.

Parties
Applicant: Lithgow City Council; First Respondent: Newera Defendo Pty Ltd; Second Respondent: David Richardson
Jurisdiction
Australia
Judgment Date
05 December 2019
Procedural Posture
Judicial Review (class 4) / Final Judgment After Hearing
Outcome
Applicant's summons dismissed; costs to the respondent company unless a party seeks an alternative order.
Legal Topics
Complying Development Certificate, State Environmental Planning Policy (infrastructure) 2007, Environmental Planning and Assessment Act 1979, Validity of Development Approvals, Statutory Construction
Planning and Environment Law Statutory Interpretation Complying Development Certificate State Environmental Planning Policy (infrastructure) 2007 Environmental Planning and Assessment Act 1979 Validity of Development Approvals Statutory Construction

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Parties

Lithgow City Council

Applicant

Newera Defendo Pty Ltd

First Respondent

David Richardson

Second Respondent

Procedural Posture

Judicial Review (class 4) / Final Judgment After Hearing

Legal Issues

  1. 1 Whether the solar voltaic array at 927 Range Road, Portland, was lawfully authorised by a complying development certificate under the State Environmental Planning Policy (Infrastructure) 2007
  2. 2 Whether cl 20B(2)(b) of the Infrastructure SEPP requires permissibility under an environmental planning instrument other than the Infrastructure SEPP

Ratio Decidendi

The plain language of cl 20B(2)(b) of the Infrastructure SEPP does not require that the relevant environmental planning instrument be other than the Infrastructure SEPP itself. Therefore, the solar voltaic array was lawfully authorised as complying development under the SEPP, and the second complying development certificate is valid.

Court Disposition

Applicant's summons dismissed; costs to the respondent company unless a party seeks an alternative order.

Orders

  • The Summons is dismissed.
  • Unless a party advises the Court by 15 January 2020 of a wish to be heard regarding costs, the Applicant is to pay the First Respondent's costs as agreed or assessed.