Longhill Projects Pty Ltd v Parramatta City Council [2009] NSWLEC 1414

Longhill Projects Pty Ltd v Parramatta City Council [2009] NSWLEC 1414

The appeal as filed was not properly brought because no appeal lies against a deemed refusal, or a refusal amounting to confirmation, of a s 82A review request. The proper appeal was against the Council's original determination of the development application dated 11 November 2008. Leave to amend the Class 1 Application was appropriate because the amendment corrected a defect and arose from substantially the same facts, and the expiry of the appeal period did not preclude leave under s 65(2)(c). Leave to rely on the amended plans was also granted because the amendments changed the development but did not create an original application, and no discretionary prejudice justified refusing leave.

Jurisdiction
Australia
Judgment Date
11 December 2009
Procedural Posture
Class 1 Application Concerning a Development Application Appeal / Amended Notice of Motion Seeking Leave to Amend the Class 1 Application and to Rely on Amended Plans
Outcome
Leave granted to amend the Class 1 Application and to rely on amended plans.
Legal Topics
['development Application Appeal' 'section 82 a Review' 'deemed Refusal' 'amendment of Originating Process' 'amended Plans' 'costs Under S 97 B']
['planning and Environment Law' 'civil Procedure'] ['development Application Appeal' 'section 82 a Review' 'deemed Refusal' 'amendment of Originating Process' 'amended Plans' 'costs Under S 97 B']

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Procedural Posture

Class 1 Application Concerning a Development Application Appeal / Amended Notice of Motion Seeking Leave to Amend the Class 1 Application and to Rely on Amended Plans

Legal Issues

  1. 1 ['Whether the Class 1 Application should be amended to appeal against the original determination of the development application or the refusal of the s 82A review.' 'Whether an appeal lies against a deemed refusal or actual refusal of a request for review under s 82A of the Environmental Planning and Assessment Act 1979.' 'Whether the applicant should be granted leave to rely on amended plans that were the subject of the s 82A review.' 'Whether s 97B of the Environmental Planning and Assessment Act 1979 was triggered by leave to amend the development application.']

Ratio Decidendi

The appeal as filed was not properly brought because no appeal lies against a deemed refusal, or a refusal amounting to confirmation, of a s 82A review request. The proper appeal was against the Council's original determination of the development application dated 11 November 2008. Leave to amend the Class 1 Application was appropriate because the amendment corrected a defect and arose from substantially the same facts, and the expiry of the appeal period did not preclude leave under s 65(2)(c). Leave to rely on the amended plans was also granted because the amendments changed the development but did not create an original application, and no discretionary prejudice justified refusing leave.

Court Disposition

Leave granted to amend the Class 1 Application and to rely on amended plans.

Orders

  • ["Order 1 of the applicant's amended notice of motion filed 27 November 2009 was made." "Order 2 of the applicant's amended notice of motion filed 27 November 2009 was made."]