McGowan v Leichhardt Municipal Council [2003] NSWLEC 390

McGowan v Leichhardt Municipal Council [2003] NSWLEC 390

The Court refused to determine the s 96 issue as a separate question because whether the modified proposal was substantially the same development was a factual planning issue peculiarly suitable for determination by a commissioner with the merits, and separate determination would add cost without practical benefit since the applicant could pursue a new development application and any refusal would raise the same merit issues on appeal.

Jurisdiction
Australia
Judgment Date
07 November 2003
Procedural Posture
Class 1 Proceedings Concerning Refusal of an Application Pursuant to S 96 of the Environmental Planning and Assessment Act to Modify a Development Consent / Application to Determine as a Separate Question Whether the Proposed Modification Was Substantially the Same Development
Outcome
Separate question refused; parties given leave to approach the Registrar to obtain a hearing date.
Legal Topics
['development Consent Modification' 'section 96 Modification Application' 'substantially the Same Development' 'separate Question' 'merit Appeal']
['planning and Environment Law'] ['development Consent Modification' 'section 96 Modification Application' 'substantially the Same Development' 'separate Question' 'merit Appeal']

Case Brief

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Procedural Posture

Class 1 Proceedings Concerning Refusal of an Application Pursuant to S 96 of the Environmental Planning and Assessment Act to Modify a Development Consent / Application to Determine as a Separate Question Whether the Proposed Modification Was Substantially the Same Development

Legal Issues

  1. 1 ['Whether the proposed modification was substantially the same development for the purposes of s 96 of the Environmental Planning and Assessment Act' 'Whether that issue was appropriate for determination by a judge as a separate question rather than by a commissioner with the merits of the appeal']

Ratio Decidendi

The Court refused to determine the s 96 issue as a separate question because whether the modified proposal was substantially the same development was a factual planning issue peculiarly suitable for determination by a commissioner with the merits, and separate determination would add cost without practical benefit since the applicant could pursue a new development application and any refusal would raise the same merit issues on appeal.

Court Disposition

Separate question refused; parties given leave to approach the Registrar to obtain a hearing date.

Orders

  • ['The Court refuses to determine a separate question.' 'The parties have leave to approach the Registrar forthwith to obtain a hearing date.']