Commitment Pty Ltd v Georges River Council (No 2)

[2022] NSWLEC 94

Land and Environment Court

New South Wales

Medium Neutral Citation:

Commitment Pty Ltd v Georges River Council; (No 2) [2022] NSWLEC 94

Hearing dates:

2 August 2022

Date of orders:

3 August 2022

Decision date:

03 August 2022

Jurisdiction:

Class 1

Before:

Pain J

Decision:

See [60]-[61]

Catchwords:

APPEAL - separate questions of law in Class 1 proceedings

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 1.4, 2.25, 4.12, 4.64, Sch 3

Environmental Planning and Assessment Amendment Act 2014 (NSW)

Environmental Planning and Assessment Amendment Act 2017 (NSW)

Environmental Planning and Assessment Regulation 1994 (NSW), cl 45, 46

Environmental Planning and Assessment Regulation 2000 (NSW)

Georges River Development Control Plan 2021 (NSW), cl 1.7

Georges River Local Environmental Plan 2021 (NSW), cl 1.8A

Hurstville Local Environmental Plan 2012 (NSW)

Interpretation Act 1987 (NSW), ss 25, 34, 35

Cases Cited:

Botany Bay City Council v Remath Investments No. 6 Pty Limited (2000) 50 NSWLR 312; [2000] NSWCA 364

Commitment Pty Ltd v Georges River Council [2022] NSWLEC 87

Friends of South West Rocks Inc v Machro Pty Ltd and Ors [2004] NSWLEC 721

Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) (2013) 197 LGERA 238; [2013] NSWLEC 14

Loder v Narrabri Shire Council [2020] NSWLEC 109

Texts Cited:

(New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 22 October 2014)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 October 2017 at 2

Category:

Procedural rulings

Parties:

Commitment Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
G Farland (Applicant)
L Sims (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2022/00044228

Judgment

1. The Applicant has commenced Class 1 proceedings which are an appeal against a deemed refusal of the Applicant’s Development Application (DA) for a property in Narwee. The Court has ordered the determination of separate questions in these Class 1 proceedings in Commitment Pty Ltd v Georges River Council [2022] NSWLEC 87 (Commitment No 1).

2. The SOAF marked Ex B identifies all the necessary facts, the four questions originally posed (now three) and relevant planning instruments:

Statement of Agreed Facts

The parties

1. The applicant is the applicant of DA2021/0415 (Development Application).

2. The respondent is a council constituted under the Local Government Act 1993 for the local government area of Georges River.

The application

3. The subject proceedings are an appeal against the deemed refusal of the Development Application generally seeking consent for:

(a) demolition works of the existing structures,

(b) removal of one (1) tree, and

(c) construction of a sixty (60) place child care centre with basement parking for nine (9) cars, at Lot 47 in Deposited Plan 10112 and known as 36 Chamberlain Street, Narwee NSW 2209 (the Site).

4. The Site is located on the north-eastern side of Chamberlain Street.

5. Existing on the Site is a dwelling house and detached single garage.

The separate questions

6. On 13 July 2022, the Court granted orders pursuant to the Applicant’s Amended Notice of Motion filed 13 July…