Integrated Mentoring Pty Ltd v The Hills Shire Council

[2015] NSWLEC 1428

Land and Environment Court

New South Wales

Medium Neutral Citation:	Integrated Mentoring Pty Ltd v The Hills Shire Council & anor [2015] NSWLEC 1428
Hearing dates:	22-23 October 2015
Date of orders:	23 October 2015
Decision date:	23 October 2015
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal dismissed
Catchwords:	PRACTICE AND PROCEDURE: appeal against a deemed refusal; class 1 application filed prematurely; lack of jurisdiction
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy (Infrastructure) 2007
Category:	Principal judgment
Parties:	Integrated Mentoring Pty Ltd (Applicant) The Hills Shire Council (First Respondent) Kelly Dobrow (Second Respondent)
Representation:	Applicant: Mr G McKee (Solicitor) First Respondent: Ms F Berglund (Barrister) Second Respondent: Ms A Pearman (Barrister)     Solicitors: Applicant: McKees Legal Solutions First Respondent: The Hills Shire Council Second Respondent: Bartier Perry
File Number(s):	10276 of 2015

Judgment

1. COMMISSIONER:   On 27 March 2015 the applicant filed a Class 1 Application appealing The Hills Shire Council’s deemed refusal of development application DA981/2015/ZB for the Torrens Title subdivision of one lot into five lots and associated works at 89A Baker Street, Carlingford.

2. The appeal is made under s 97(1)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act). Section 97(1) states:

(1)   An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant’s development application (including a determination on a review under section 82A) may appeal to the Court within 6 months after:

(a)    the date on which the applicant received notice, given in accordance with the regulations, of the determination of that application or review, or

(b)   the date on which that application is taken to have been determined under section 82 (1).

3. The Class 1 Application states that the development application was lodged with the council on 10 February 2015.

4. On the second day of the hearing the second respondent sought to re-agitate a contention (withdrawn from their Amended Statement of Facts of Contentions) and filed a Further Amended SF&C in regards to the court’s jurisdiction to proceed with the matter on the basis that the Class 1 application was filed with the court before the expiry of the of the minimum assessment period specified in the Environmental Planning and Assessment Regulation 2000 (the Regulations).

5. In support of this contention Exhibit R10 is a chronology of the progress of DA981/2015/ZB through council’s assessment process and supported by screenshots of council’s records published on the development application tracking system.

6. The original contention pressed that the development is more accurately described as Integrated Development. Because of the works proposed within the transmission easement, the second applicant contends that they cannot be certain that concurrence has been sought or obtained from Ausgrid in accordance with s 45(2) State Environmental Planning Policy (Infrastructure) 2007. To that end, the statutory assessment period in clauses 106, 107, 109, 112 and 113 of the Regulations is 60 days for integrated development and 40 days if it is not.

7. The chronology indicates that the Class 1 application was filed 46 calendar days after the DA was lodged however there were two stages at which the council ‘stopped the clock’ resulting in an assessment period of 28 days. The chronology also notes that the council issued a Notice of Determination refusing the DA on 4 May 2015 after an assessment period of 33 days.

8. On the basis of the chronology and after seeking instructions, Ms Berglund raised no objections to the dismissal of the appeal. In order to cure the jurisdictional problem, Mr McKee commenced new proceedings on the basis of the actual refusal of the development application (matter 10948 of 2015). He offered no defence against the dismissal of these proceedings.

Findings and orders

9. Regardless of whether the application is for integrated development or not, I am satisfied on the evidence of the screenshots taken from the council’s development application tracking system, that the second respondent’s chronology accurately summarises the assessment process and proves that the applicant filed the Class 1 application before the expiry of the required assessment period. As a consequence, the applicant, at the time of filing, had no right of appeal under s 97(1) of the EPA Act. As such, the Court has no jurisdiction and the matter must be dismissed.

10. The orders of the Court are:

1. Appeal 10276 of 2015 is dismissed.

______________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 27 October 2015