Frasers Greencliff Developments Pty Ltd v Ku-ring-gai Council [2008] NSWLEC 1259

Frasers Greencliff Developments Pty Ltd v Ku-ring-gai Council [2008] NSWLEC 1259

The proposed s 96 modification was refused because it would permit occupation while leaving completion of approved landscaping and related works dependent on uncertain future agreement with neighbours, Supreme Court proceedings, or a further modification to the landscape plan. The right of carriageway existed before consent was granted, so there was no changed circumstance warranting the modification. The proposal provided no certainty that the development would be completed in accordance with the consent, was an inappropriate use of s 96, was contrary to orderly and economic development of land, and was not in the public interest under s.79C(1)(e).

Jurisdiction
Australia
Judgment Date
30 June 2008
Procedural Posture
Appeal Section 96 Modification / Merits Appeal Against Refusal of S 96 Modification Application
Outcome
Appeal dismissed and s 96 modification application refused.
Legal Topics
['section 96 Modification' 'development Consent Conditions' 'occupation Certificate' 'right of Carriageway' 'public Interest' 'landscaping Conditions']
['planning and Environment Law'] ['section 96 Modification' 'development Consent Conditions' 'occupation Certificate' 'right of Carriageway' 'public Interest' 'landscaping Conditions']

Case Brief

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Procedural Posture

Appeal Section 96 Modification / Merits Appeal Against Refusal of S 96 Modification Application

Legal Issues

  1. 1 ['Whether the development consent should be modified to allow an Occupation Certificate to issue before completion of landscaping and other works on land burdened by a right of carriageway.' 'Whether the proposed modification was in the public interest and consistent with orderly administration of the Environmental Planning and Assessment Act 1979.' 'Whether approval should be granted where completion in accordance with the approved plans depended on agreement with neighbours, Supreme Court proceedings, or a further modification application.']

Ratio Decidendi

The proposed s 96 modification was refused because it would permit occupation while leaving completion of approved landscaping and related works dependent on uncertain future agreement with neighbours, Supreme Court proceedings, or a further modification to the landscape plan. The right of carriageway existed before consent was granted, so there was no changed circumstance warranting the modification. The proposal provided no certainty that the development would be completed in accordance with the consent, was an inappropriate use of s 96, was contrary to orderly and economic development of land, and was not in the public interest under s.79C(1)(e).

Court Disposition

Appeal dismissed and s 96 modification application refused.

Orders

  • ['The appeal for the property known as 25A, 27 and 29 Lorne Avenue, Killara is dismissed.' 'The s 96 modification application MOD296/07 to modify conditions, including No. 4, of development consent number 425/05 granted by Ku-ring-gai Council in February 2006 is determined by the refusal of consent.' 'The exhibits...