Fernance Family Holdings Pty Ltd v Newcastle City Council [2000] NSWLEC 190

Fernance Family Holdings Pty Ltd v Newcastle City Council [2000] NSWLEC 190

The applicant's modification application seeks to remove a restriction imposed by a consent condition rather than grant a new form of development consent for use; this is permissible and does not justify summary dismissal. Further, whether the proposed modified development is 'substantially the same' as originally approved is a question of fact reasonably capable of different answers on the primary facts, and cannot be determined as a matter of law alone.

Jurisdiction
Australia
Judgment Date
28 August 2000
Procedural Posture
Motion for Summary Dismissal of Class 1 Proceedings / Judgment on an Amended Notice of Motion, Summary Dismissal and Question of Law
Outcome
Respondent's amended notice of motion for summary dismissal is dismissed; Court determines question of law against the Council.
Legal Topics
['modification of Development Consent' 'practice and Procedure' 'summary Dismissal' 'statutory Construction – Ep&a Act S 96' 'substantially the Same Development']
['planning and Environment Law' 'administrative Law'] ['modification of Development Consent' 'practice and Procedure' 'summary Dismissal' 'statutory Construction – Ep&a Act S 96' 'substantially the Same Development']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Motion for Summary Dismissal of Class 1 Proceedings / Judgment on an Amended Notice of Motion, Summary Dismissal and Question of Law

Legal Issues

  1. 1 ['Whether a modification application under s 96 of the Environmental Planning and Assessment Act 1979 can seek removal of a condition restricting use when the original consent related to erection of a building' "Whether the development as proposed to be modified is 'substantially the same development' as originally consented to under s 96(2)(a) EP&A Act"]

Ratio Decidendi

The applicant's modification application seeks to remove a restriction imposed by a consent condition rather than grant a new form of development consent for use; this is permissible and does not justify summary dismissal. Further, whether the proposed modified development is 'substantially the same' as originally approved is a question of fact reasonably capable of different answers on the primary facts, and cannot be determined as a matter of law alone.

Court Disposition

Respondent's amended notice of motion for summary dismissal is dismissed; Court determines question of law against the Council.

Orders

  • ["The Council's Amended Notice of Motion is dismissed."]