Toner Design Pty Ltd v Newcastle City Council

[2013] NSWCA 410

NSW Court of Appeal

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Interrogate

Catchwords

1. Environment and Planning
2. › Development consent
3. › Designated development
4. › Exception for ancillary development
5. › Whether contaminated soil treatment works ancillary to seniors living development
6. › Whether proposed to be carried out independently of other development
7. › Environmental Planning and Assessment Regulation 2000 (NSW), Sch 3 cl 37A
1. Statutory Interpretation
2. › Words and phrases
3. › "ancillary to"
4. › "not proposed to be carried out independently of"
5. › Environmental Planning and Assessment Regulation 2000 (NSW), Sch 3 cl 37A
1. Appeal
2. › Land and Environment Court
3. › Appeal on question of law
4. › Whether primary judge erred in construction of statutory provision
5. › Whether primary judge erred in application of provision
6. › Land and Environment Court Act 1979 (NSW), s 57

Quick Take

The ancillary development exception in cl 37A(1) of Sch 3 to the EPA Regulation 2000 (NSW) involves a dual test: the putative designated development must be (a) ancillary to other development in the sense of being subservient to and serving the purposes of the other development, and (b) not proposed to be carried out independently of that other development. The test under paragraph (b) is objective, assessed by reference to the development application and accompanying documents, not the subjective intentions of the applicant. The characterisation of development as ancillary or independent is a question of fact and degree assessed from a town planning perspective, and substantial works may fail the ancillary test even where undertaken solely to enable the other development.