Penrith Lakes Development Corporation Ltd v Penrith City Council [2015] NSWLEC 9

Penrith Lakes Development Corporation Ltd v Penrith City Council [2015] NSWLEC 9

It is inappropriate to order the preliminary and separate determination of the permissibility question under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) because the facts are not agreed or readily ascertainable and because resolution of the question will require evaluative judgments and consideration of contested evidence, which will also overlap with merit issues in the substantive appeal.

Parties
Applicant: Penrith Lakes Development Corporation Limited; Respondent: Penrith City Council
Jurisdiction
Australia
Judgment Date
05 February 2015
Procedural Posture
Development Application Appeal / Ruling on Notice of Motion for Separate Question
Outcome
Notice of Motion dismissed
Legal Topics
Development Application, Separate Question Procedure, Preliminary Determination, Permissibility of Development, State Environmental Planning Policy (penrith Lakes Scheme) 1989
Planning and Environment Law Civil Procedure Development Application Separate Question Procedure Preliminary Determination Permissibility of Development State Environmental Planning Policy (penrith Lakes Scheme) 1989

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Parties

Penrith Lakes Development Corporation Limited

Applicant

Penrith City Council

Respondent

Procedural Posture

Development Application Appeal / Ruling on Notice of Motion for Separate Question

Legal Issues

  1. 1 Whether the permissibility of the development applications under SEPP 1989 may be determined as a separate and preliminary question under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW)
  2. 2 Whether the proposed developments by Penrith Lakes are permissible as implementing the Penrith Lakes Scheme, as interim development pending completion of the Scheme, or as development for the purposes of road construction/widening

Ratio Decidendi

It is inappropriate to order the preliminary and separate determination of the permissibility question under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) because the facts are not agreed or readily ascertainable and because resolution of the question will require evaluative judgments and consideration of contested evidence, which will also overlap with merit issues in the substantive appeal.

Court Disposition

Notice of Motion dismissed

Orders

  • In each matter the Council's notice of motion dated 16 December 2014 is dismissed.