Pepperwood Ridge Pty Ltd v Newcastle City Council [2008] NSWLEC 196

Pepperwood Ridge Pty Ltd v Newcastle City Council [2008] NSWLEC 196

Clause 83 of SEPP SL Amendment No 1 applies: the development application, originally made under SEPP 5 and lodged before the commencement of SEPP SL (Amendment No 1), was to be determined as if the amendment had not been made. The application is therefore treated as made under Chapter 3 of the unamended SEPP SL because SEPP SL became the sole source of power, the applicant communicated this intention, and both parties acted accordingly since SEPP SL commenced.

Parties
Applicant: Pepperwood Ridge Pty Ltd; Respondent: Newcastle City Council
Jurisdiction
Australia
Judgment Date
19 June 2008
Procedural Posture
Appeal (class 1 Merit Appeal) and Preliminary Question Determination / Determination of Preliminary Question Regarding Applicable Planning Instrument
Outcome
Preliminary question answered in the affirmative; costs awarded to applicant.
Legal Topics
Transitional Provisions in Planning Instruments, Application of State Environmental Planning Policy, Merit Appeals in Land and Environment Court, Costs in Merit Appeals
Environmental Law Administrative Law Planning Law Transitional Provisions in Planning Instruments Application of State Environmental Planning Policy Merit Appeals in Land and Environment Court Costs in Merit Appeals

Case Brief

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Parties

Pepperwood Ridge Pty Ltd

Applicant

Newcastle City Council

Respondent

Procedural Posture

Appeal (class 1 Merit Appeal) and Preliminary Question Determination / Determination of Preliminary Question Regarding Applicable Planning Instrument

Legal Issues

  1. 1 Whether the development application lodged on 25 March 2004 is to be determined under State Environmental Planning Policy (Seniors Living) 2004 (SEPP SL) in its unamended form
  2. 2 Whether transitional and savings provisions of SEPP SL or its Amendments apply to the application given it was lodged after 18 February but before 31 March 2004

Ratio Decidendi

Clause 83 of SEPP SL Amendment No 1 applies: the development application, originally made under SEPP 5 and lodged before the commencement of SEPP SL (Amendment No 1), was to be determined as if the amendment had not been made. The application is therefore treated as made under Chapter 3 of the unamended SEPP SL because SEPP SL became the sole source of power, the applicant communicated this intention, and both parties acted accordingly since SEPP SL commenced.

Court Disposition

Preliminary question answered in the affirmative; costs awarded to applicant.

Orders

  • The preliminary question is answered 'Yes'.
  • The respondent is to pay the applicant's costs of the preliminary question.