Hinkler Ave 1 Pty Limited v Sutherland Shire Council

Hinkler Ave 1 Pty Limited (the applicant) appealed to the Court of Appeal of New South Wales against a decision of Moore J of the Land and Environment Court. The dispute concerned a development application for a mixed-use development, which was lodged prior to the repeal and replacement of an environmental planning instrument. The central issue was whether the development application had been "made" before the commencement of the new instrument, thereby attracting a savings provision.

The Court of Appeal was required to determine when a development application is considered "made" for the purposes of the savings provision in the new environmental planning instrument. This involved interpreting and applying the requirements for making a development application, specifically whether compliance with the prescribed form and manner was a prerequisite for the application to be considered "made".

The Court reasoned that a development application is not "made" until it has been lodged in the prescribed form and manner. As the applicant had not complied with these requirements at the time the new instrument commenced, the savings provision did not apply. Consequently, the appeal was dismissed, and the applicant was ordered to pay the respondent's costs.