Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502

Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502

The power to modify a development consent under s 96 includes the power to disallow or amend a section 94 condition under s 94B(3) because it is unreasonable; in this case, condition 69 is to be amended so that the underlying population is 160.32 people and the childcare contribution is $96.23 per person, reflecting a reasonable apportionment based on the evidence.

Jurisdiction
Australia
Judgment Date
18 August 2006
Procedural Posture
Appeal/modification Application / Judgment
Outcome
Appeal upheld; condition 69 to be amended
Legal Topics
['development Contributions' 'environmental Planning and Assessment Act' 'section 94 Conditions' 'modification of Consent' 'reasonableness of Conditions']
['planning Law' 'local Government Law'] ['development Contributions' 'environmental Planning and Assessment Act' 'section 94 Conditions' 'modification of Consent' 'reasonableness of Conditions']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal/modification Application / Judgment

Legal Issues

  1. 1 ["Is the Court's power under s 94B(3) of the Environmental Planning and Assessment Act 1979 available in proceedings commenced under s 96?" 'Can and should condition 69 of development consent DA 282/05 be disallowed or amended because it is unreasonable?' "Is a childcare centre a 'public amenity or public service' within the meaning of s 94(1)?" 'Should the Court exercise its discretion to modify condition 69?']

Ratio Decidendi

The power to modify a development consent under s 96 includes the power to disallow or amend a section 94 condition under s 94B(3) because it is unreasonable; in this case, condition 69 is to be amended so that the underlying population is 160.32 people and the childcare contribution is $96.23 per person, reflecting a reasonable apportionment based on the evidence.

Court Disposition

Appeal upheld; condition 69 to be amended

Orders

  • ['Condition 69 amended to reflect an underlying population of 160.32 people and a childcare contribution of $96.23 per person; otherwise, the condition is not unreasonable and accords with statutory requirements' "Parties directed to file, within 7 days, agreed (or competing) versions of condition 69 reflecting the...