Andrews v Botany Bay City Council [2007] NSWLEC 716

Andrews v Botany Bay City Council [2007] NSWLEC 716

Imposing full responsibility for undergrounding all service cables in the streets adjacent to the development site on the applicant would be neither fair nor reasonable; the applicant's proposed alternative condition (conduits but not cable installation on O'Riordan St, streetlights on all frontages, and undergrounding in John St as per council alternative) is a proportionate response in light of community benefit and the degree of burden. The appeal is upheld, deleting condition 60 and replacing condition 38 as proposed by the applicant.

Parties
Applicant: George Andrews; Respondent: Botany Bay City Council
Jurisdiction
Australia
Judgment Date
31 October 2007
Procedural Posture
Appeal of Modification Application (s 96 EPA Act 1979) / Judgment on Appeal
Outcome
Appeal upheld
Legal Topics
Development Consent Modifications, Planning Conditions—reasonableness, Undergrounding of Service Cables, Developer Contributions
Planning and Environment Law Development Consent Modifications Planning Conditions—reasonableness Undergrounding of Service Cables Developer Contributions

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Parties

George Andrews

Applicant

Botany Bay City Council

Respondent

Procedural Posture

Appeal of Modification Application (s 96 EPA Act 1979) / Judgment on Appeal

Legal Issues

  1. 1 Whether the conditions requiring the applicant to pay for undergrounding all overhead service cables are reasonable and fairly relate to the development
  2. 2 Whether condition 38 should be amended and condition 60 deleted from the development consent

Ratio Decidendi

Imposing full responsibility for undergrounding all service cables in the streets adjacent to the development site on the applicant would be neither fair nor reasonable; the applicant's proposed alternative condition (conduits but not cable installation on O'Riordan St, streetlights on all frontages, and undergrounding in John St as per council alternative) is a proportionate response in light of community benefit and the degree of burden. The appeal is upheld, deleting condition 60 and replacing condition 38 as proposed by the applicant.

Court Disposition

Appeal upheld

Orders

  • Condition 60 deleted from the development consent.
  • Condition 38 deleted and replaced as per the applicant's proposed amendment.