Toner Design Pty Ltd v Newcastle City Council

Toner Design Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a determination made by the primary judge of the Land and Environment Court. The dispute concerned whether certain development undertaken by the appellant constituted designated development under the *Environmental Planning and Assessment Regulation 2000* (NSW).

The central legal issue before the Court of Appeal was whether the primary judge had erred in law in their construction and application of clause 37A of Schedule 3 to the *Environmental Planning and Assessment Regulation 2000*. Specifically, the appeal questioned whether the primary judge correctly interpreted the exception within that clause, which exempts development from being classified as designated development if it is ancillary to, and not proposed to be carried out independently of, other development.

The Court of Appeal affirmed the primary judge's decision, finding no error in law. The reasoning focused on the plain meaning of the statutory language. The Court held that the development in question was not merely ancillary to other development but was, in fact, a distinct and independent development in its own right. The phrase "not proposed to be carried out independently of" was interpreted to mean that the ancillary development must be intrinsically linked to and dependent upon the primary development for its purpose and existence, which was not the case here.

Consequently, the appeal was dismissed. The appellant was ordered to pay the respondent's costs in the Court of Appeal, and the matter was remitted to the Land and Environment Court for the determination of costs at the primary level.