Council or JRPP; Who should determine a development application?: Update August 2010

In this case Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWCA 189, the Court of Appeal was asked to revisit a decision of Justice Biscoe in the Land & Environment Court and determine whether the Council or the relevant Joint Regional Planning Panel (JRPP) had power to determine a development application.  The case focused on whether the proposed development had a capital investment value exceeding $10 million.  Developments with a capital investment value exceeding $10 million are determined by the relevant JRPP.  The proposed development would have a capital investment value exceeding $10 million if the tenancy fit-out costs of the proposed development were included.  The Court of Appeal determined, based on the facts of this case, that the tenancy fit-out costs were not included in the capital investment value.  Accordingly, the Council had power to determine the development application.

This case has significance beyond determining whether or not Council or a JRPP have the power to determine a development application.  State Environmental Planning Policy (Major Development) 2005 (SEPP) requires the Minister to consider the ‘capital investment value’ of a project when determining if a project is a Part 3A project. 

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