Detala Pty Ltd V Byron Council [2000] NSWLEC 44

Detala Pty Ltd V Byron Council [2000] NSWLEC 44

The 1995 development consent was a consent of the kind referred to in Environmental Planning and Assessment Act 1979 s 79B(3) because carrying out the approved development was certain to significantly affect a threatened species or ecological community or its habitat. The proposed change to condition 23 was a modification under s 96(2), not a minor modification, and s 96(5) required compliance with s 79B(3)-(7). Because the Director General of National Parks and Wildlife refused concurrence, those requirements were not complied with. Land and Environment Court Act 1979 s 39(6) did not overcome the prohibition because the Court was acting as the consent authority under cl 72 of the...

Jurisdiction
Australia
Judgment Date
10 March 2000
Procedural Posture
Application Under Environmental Planning and Assessment Act 1979 S 96 to Modify a Development Consent / Final Determination of Modification Application
Outcome
Modification application refused.
Legal Topics
['modification of Development Consent' 'concurrence of Director General of National Parks and Wildlife' 'land and Environment Court as Consent Authority' 'tree Preservation Order' 'endangered Ecological Community']
['planning and Environment' 'development Consent' 'threatened Species'] ['modification of Development Consent' 'concurrence of Director General of National Parks and Wildlife' 'land and Environment Court as Consent Authority' 'tree Preservation Order' 'endangered Ecological Community']

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Procedural Posture

Application Under Environmental Planning and Assessment Act 1979 S 96 to Modify a Development Consent / Final Determination of Modification Application

Legal Issues

  1. 1 ['Whether Environmental Planning and Assessment Act 1979 s 96(5) applied to the modification application.' 'Whether refusal of concurrence by the Director General of National Parks and Wildlife prevented approval of the modification application.' 'Whether Land and Environment Court Act 1979 s 39(6) empowered the Court to approve the modification notwithstanding refusal of concurrence when the Court was acting as consent authority rather than on appeal.' 'Whether the Court, if reaching the merits, would consider the approved development as proposed to be modified under Environmental Planning and Assessment Act 1979 s 96(3).']

Ratio Decidendi

The 1995 development consent was a consent of the kind referred to in Environmental Planning and Assessment Act 1979 s 79B(3) because carrying out the approved development was certain to significantly affect a threatened species or ecological community or its habitat. The proposed change to condition 23 was a modification under s 96(2), not a minor modification, and s 96(5) required compliance with s 79B(3)-(7). Because the Director General of National Parks and Wildlife refused concurrence, those requirements were not complied with. Land and Environment Court Act 1979 s 39(6) did not overcome the prohibition because the Court was acting as the consent authority under cl 72 of the...

Court Disposition

Modification application refused.

Orders

  • ['The modification application be refused.']