Australian Native Landscapes Pty Ltd v Warringah Shire Council [1989] NSWLEC 155

Australian Native Landscapes Pty Ltd v Warringah Shire Council [1989] NSWLEC 155

The proposed extension of trading hours under Condition 8 was refused because the evidence of neighbouring residents established likely prejudice, especially by noise nuisance, to persons who had objected to the original development application, and any extension of hours would extend that nuisance. The proposed modification of Condition 25 was allowed, with limiting wording, because the broadened range of landscape supply products remained substantially the same development as the 1979 rural industry consent, no prejudice to original objectors was shown, the disputed gravel, quarry and treated timber products were primary products handled or processed on site, the minor miscellaneous...

Jurisdiction
Australia
Judgment Date
08 February 1989
Procedural Posture
Two Appeals Under S.102(5) of the Environmental Planning and Assessment Act 1979 Concerning Applications to Modify Conditions of a Development Consent / Judgment After the Appeals Were Heard Together by Consent
Outcome
Appeal No. 10195 of 1988 dismissed; Appeal No. 10256 of 1988 allowed; Development consent No. 79/337 modified by substituting Condition 25; no order as to costs.
Legal Topics
['modification of Development Consent' 'rural Industry' 'landscape Supplies' 'trading and Operating Hours' 'prejudice to Objectors' 'noise Nuisance' 'statutory Discretion Under S.102']
['planning and Environment Law' 'land Use and Development Consent'] ['modification of Development Consent' 'rural Industry' 'landscape Supplies' 'trading and Operating Hours' 'prejudice to Objectors' 'noise Nuisance' 'statutory Discretion Under S.102']

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Procedural Posture

Two Appeals Under S.102(5) of the Environmental Planning and Assessment Act 1979 Concerning Applications to Modify Conditions of a Development Consent / Judgment After the Appeals Were Heard Together by Consent

Legal Issues

  1. 1 ['Whether Condition 8 of the 1979 development consent should be modified to extend trading or operating hours.' 'Whether Condition 25 of the 1979 development consent should be modified to broaden the permitted uses on the site for landscape supplies.' 'Whether the development to which the consent as modified would relate was substantially the same development as that originally approved.' 'Whether modification would prejudice persons who objected to the original development application.' 'Whether decorative gravels, quarry products and treated timber logs were primary products within the definition of rural industry, and whether miscellaneous non-primary items were merely ancillary.' 'Whether the Court should refuse modification in the exercise of statutory discretion because the proposal should instead proceed by development application.']

Ratio Decidendi

The proposed extension of trading hours under Condition 8 was refused because the evidence of neighbouring residents established likely prejudice, especially by noise nuisance, to persons who had objected to the original development application, and any extension of hours would extend that nuisance. The proposed modification of Condition 25 was allowed, with limiting wording, because the broadened range of landscape supply products remained substantially the same development as the 1979 rural industry consent, no prejudice to original objectors was shown, the disputed gravel, quarry and treated timber products were primary products handled or processed on site, the minor miscellaneous...

Court Disposition

Appeal No. 10195 of 1988 dismissed; Appeal No. 10256 of 1988 allowed; Development consent No. 79/337 modified by substituting Condition 25; no order as to costs.

Orders

  • ['Appeal No. 10195 of 1988 dismissed.' 'Appeal No. 10256 of 1988 allowed.' 'Development consent No. 79/337 granted on 18th December, 1979 to the development of Portion 77 and Part Portion 105, Myoora Road, Terrey Hills for the purposes of rural industry be modified by omitting Condition 25 and substituting the...