Cavasinni Constructions Pty Ltd v Fairfield City Council [2009] NSWLEC 1320

Cavasinni Constructions Pty Ltd v Fairfield City Council [2009] NSWLEC 1320

Condition 3(a) should not be deleted because it had a planning purpose in enabling the extension of Stein Lane and vehicle access to the downstream lots, was fair and reasonable in the circumstances despite the restaurant's existing access needs being met on-site, and was not unreasonable in the Wednesbury sense. The development as modified remained substantially the same restaurant extension, but the discretion under s96 was exercised against deleting condition 3(a) because the site had benefited from the gradual creation of Stein Lane access and the condition was consistent with the overall scheme for orderly development. Other agreed or justified modifications to conditions concerning...

Jurisdiction
Australia
Judgment Date
01 October 2009
Procedural Posture
Appeal Against Refusal of an Application Pursuant to S96 of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent / Judgment After Hearing
Outcome
Appeal upheld; Modification No 58/2008 approved and Development Consent No 512/2007 modified in accordance with Annexure A, while deletion of condition 3(a) was refused.
Legal Topics
['section 96 Modification Application' 'conditions of Development Consent' 'right of Carriageway' 'stormwater Drainage' 'newbury Tests' 'orderly and Economic Use and Development of Land']
['planning and Environment' 'development Consent Modification'] ['section 96 Modification Application' 'conditions of Development Consent' 'right of Carriageway' 'stormwater Drainage' 'newbury Tests' 'orderly and Economic Use and Development of Land']

Case Brief

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Procedural Posture

Appeal Against Refusal of an Application Pursuant to S96 of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent / Judgment After Hearing

Legal Issues

  1. 1 ['Whether condition 3(a), requiring creation and registration of a right of carriageway in favour of the downstream lots, should be deleted from Development Consent No 512/2007.' 'Whether condition 3(a) had a planning purpose, fairly and reasonably related to the permitted development, and was reasonable.' 'Whether the development as modified would be substantially the same as the development for which consent was granted.' 'Whether disputed conditions concerning stormwater drainage, easements, kerb inlet pits and compliance with plans should be amended or deleted.']

Ratio Decidendi

Condition 3(a) should not be deleted because it had a planning purpose in enabling the extension of Stein Lane and vehicle access to the downstream lots, was fair and reasonable in the circumstances despite the restaurant's existing access needs being met on-site, and was not unreasonable in the Wednesbury sense. The development as modified remained substantially the same restaurant extension, but the discretion under s96 was exercised against deleting condition 3(a) because the site had benefited from the gradual creation of Stein Lane access and the condition was consistent with the overall scheme for orderly development. Other agreed or justified modifications to conditions concerning...

Court Disposition

Appeal upheld; Modification No 58/2008 approved and Development Consent No 512/2007 modified in accordance with Annexure A, while deletion of condition 3(a) was refused.

Orders

  • ['The appeal is upheld.' 'Modification No 58/2008 is approved and Development Consent No 512/2007 issued by Fairfield City Council for 685-687 The Horsley Drive Smithfield is modified in accordance with Annexure "A".' 'Exhibits, other than Exhibits 5 and 6, may be returned.']