BRIAN DUNNE v. HURSTVILLE CITY COUNCIL [1998] NSWLEC 84 (7 May 1998) [1998] NSWLEC 35

BRIAN DUNNE v. HURSTVILLE CITY COUNCIL [1998] NSWLEC 84 (7 May 1998) [1998] NSWLEC 35

The modification sought only deletes a condition and does not change the nature of development; the development consent was still on foot at the time of application as notification for extension was given and council had not determined to refuse or grant further extension. There was no merit to council's arguments regarding lapse or use as a brothel in the context of the modification application.

Parties
Applicant: Brian Dunne; Respondent: Hurstville City Council
Jurisdiction
Australia
Judgment Date
07 May 1998
Procedural Posture
Class 1 Appeal / Judgment
Outcome
Appeal upheld. Modification granted.
Legal Topics
Development Consent Modification, Lapse of Consent, Statutory Interpretation
Planning Law Development Consent Modification Lapse of Consent Statutory Interpretation

Case Brief

Summary, issues, holding and outcome

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Parties

Brian Dunne

Applicant

Hurstville City Council

Respondent

Procedural Posture

Class 1 Appeal / Judgment

Legal Issues

  1. 1 Whether the development to which the consent as modified relates is substantially the same development
  2. 2 Whether the development consent has lapsed pursuant to s 99(4A) of the Environmental Planning and Assessment Act 1979
  3. 3 Whether the s 102 application was made after the development consent had lapsed

Ratio Decidendi

The modification sought only deletes a condition and does not change the nature of development; the development consent was still on foot at the time of application as notification for extension was given and council had not determined to refuse or grant further extension. There was no merit to council's arguments regarding lapse or use as a brothel in the context of the modification application.

Court Disposition

Appeal upheld. Modification granted.

Orders

  • The appeal is upheld.
  • Development consent No 294/94 in respect of premises at 327A Belmore Road Riverwood is modified by the deletion of condition 10.