Fast Buck$ and Mark Thompson v Hixson Holdings Pty Limited and Byron Shire Council [1989] NSWLEC 202

Fast Buck$ and Mark Thompson v Hixson Holdings Pty Limited and Byron Shire Council [1989] NSWLEC 202

Condition A1 was construed as requiring the relevant legal agreements to be entered into before physical development was undertaken on the land, and Hixson was in breach of the development consent when it undertook development in early 1988 without those agreements. However, any breach did not make the October 1987 building approval void, there was no present threat of work being undertaken under the 1986 consent or 1987 approval, Hixson gave an undertaking to provide fourteen days notice before relying on them, and a declaration would have no practical utility. The application was therefore dismissed, with no order as to costs because the applicants had achieved some success on the...

Jurisdiction
Australia
Judgment Date
01 June 1989
Procedural Posture
Proceedings Seeking Declarations and Restraining Orders Concerning Building Approval and Compliance With a Development Consent / Judgment on Application After Hearing
Outcome
Application dismissed; no order as to costs.
Legal Topics
['development Consent Conditions' 'building Approval' 'declarations and Restraining Orders' 'discretionary Relief' 'legal Professional Privilege' 'costs']
['environmental Planning and Assessment' 'local Government' 'land and Environment Court Procedure'] ['development Consent Conditions' 'building Approval' 'declarations and Restraining Orders' 'discretionary Relief' 'legal Professional Privilege' 'costs']

Case Brief

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Procedural Posture

Proceedings Seeking Declarations and Restraining Orders Concerning Building Approval and Compliance With a Development Consent / Judgment on Application After Hearing

Legal Issues

  1. 1 ['Whether the legal agreements referred to in condition A1 of development consent 86/177 had been entered into before building approval 168/177 was released.' 'Whether building approval 168/177 was released prior to compliance with condition A1 and was thereby in breach of the development consent.' 'Whether the Court should grant declaratory or restraining relief in the exercise of its discretion.' 'Whether the October 1987 building approval was void if it was granted in breach of condition A1.']

Ratio Decidendi

Condition A1 was construed as requiring the relevant legal agreements to be entered into before physical development was undertaken on the land, and Hixson was in breach of the development consent when it undertook development in early 1988 without those agreements. However, any breach did not make the October 1987 building approval void, there was no present threat of work being undertaken under the 1986 consent or 1987 approval, Hixson gave an undertaking to provide fourteen days notice before relying on them, and a declaration would have no practical utility. The application was therefore dismissed, with no order as to costs because the applicants had achieved some success on the...

Court Disposition

Application dismissed; no order as to costs.

Orders

  • ['Application dismissed.' 'No order as to costs.']