Brooklyn Resort Pty Ltd - v - Hornsby Council

[1999] NSWLEC 6

Land and Environment Court

of New South Wales

CITATION:	Brooklyn Resort Pty Ltd - V - Hornsby Council [1999] NSWLEC 6
PARTIES	Applicant Brooklyn Resort Pty Ltd
Respondent Hornsby Council
NUMBER:	10432 of 1998
CORAM:	Lloyd J
KEY ISSUES:	:- Payment of development application fee whether to Court or Respondent
LEGISLATION CITED:	Payment of development application fee whether to Court or Respondent
DATES OF HEARING:	12/16/1998
DATE OF JUDGMENT DELIVERY:	02/04/1999
LEGAL REPRESENTATIVES:	Applicant A H J Commons (s) Respondent J E Robson

JUDGMENT:


1. The applicant has brought an appeal under the Environmental Planning & Assessment Act 1979, s 97, against a determination by the respondent to refuse its consent to a development application. The proposed development in this case is designated development under s 77A of that Act. That fact requires the public exhibition and notification of the application in accordance with s 79. Formal public exhibition and notification in accordance with that section had not been undertaken when the application in this Court was filed because the respondent was not satisfied that the information accompanying the development application was complete. In determining to refuse the application the respondent refunded all but a portion of the development application fee which had been paid by the applicant.

2. The respondent has sought a number of directions relating to the preparation of the hearing of the appeal. One of the directions which it seeks is the payment of the balance of the fee which it had refunded on its refusal of consent to the application. The payment of such fee is required, it is submitted, to defray the expenses which the respondent will necessarily incur in publicly exhibiting and notifying the application and in having its experts examine and report on the application, albeit that any such report or reports would be required for the Court as the now consent authority.

3. The applicant opposes any direction requiring the payment of the fee to the respondent. According to the applicant, the Court is now the consent authority ( Land & Environment Court Act 1979, s 39(2), (5)). Accordingly, only the Court can require the payment of the fee and any such fee must be paid to the Court and not to the respondent.

4. Payment of the fee is a precondition to the making of a valid development application ( Environmental Planning & Assessment Act , s 78A(9) and Environmental Planning & Assessment Regulation 1984, clause 46A(1)(c), previously required by the Environmental Planning & Assessment Act , s 77(3)(e)).

5. I accept the applicant’s submission that since the Court is now the consent authority the fee must be paid to it. Having regard to the purpose of the fee, however, it should be remitted to the respondent to enable it to defray its costs and expenses in publicly exhibiting and notifying the application in accordance with the Act and having its experts examine and report on the application.

6. It is accordingly appropriate that I should make the following orders:

1. The development application fee be paid by the applicant to the Registrar of the Court, for remission by the Registrar to the respondent.

2. Alternatively, the payment of the development application fee by the applicant directly to the respondent shall be deemed to be compliance with Order 1 hereof.

I certify that this and the preceding 2 pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate
Dated: 04/02/99