Bruce Kerr Pty LTD v Gosford City Council [1988] NSWLEC 140

Bruce Kerr Pty LTD v Gosford City Council [1988] NSWLEC 140

The Senior Assessor made no error of law in treating the annotated plans as not constituting a fresh application, in finding sufficient compliance with Ordinance 32, in concluding that the development consent was subsisting, and in determining fill levels under the Court's functions standing in the Council's shoes....

Source-derived case information.

Jurisdiction
Australia
Judgment Date
29 September 1988
Procedural Posture
Appeal Under S.56 a of the Land and Environment Court Act 1979 From Orders in Class 2 Proceedings Under S.341 of the Local Government Act 1919 / Appeal on Questions of Law Against Orders Made by the Senior Assessor on 2 March 1988
Outcome
Appeal allowed; Order 2 made by the Senior Assessor on 2 March 1988 set aside and the matter remitted for determination of whether a contribution condition should be attached.
Legal Topics
['development Consent' 'subdivision Approval' 'flood Levels and Filling' 'jurisdiction of the Land and Environment Court' 'conditions of Consent' 'monetary Contribution for External Works']
['planning and Environment' 'local Government' 'land Subdivision'] ['development Consent' 'subdivision Approval' 'flood Levels and Filling' 'jurisdiction of the Land and Environment Court' 'conditions of Consent' 'monetary Contribution for External Works']

Source-derived case record

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Procedural Posture

Appeal Under S.56 a of the Land and Environment Court Act 1979 From Orders in Class 2 Proceedings Under S.341 of the Local Government Act 1919 / Appeal on Questions of Law Against Orders Made by the Senior Assessor on 2 March 1988

Legal Issues

  1. 1 ['Whether plans furnished to Council on 30 October 1987 constituted a fresh application made after proceedings commenced, depriving the Senior Assessor of jurisdiction.' 'Whether the subdivision application failed to comply with Ordinance 32, cl.2(c)(vii), (viii) and (ix).' 'Whether the Senior Assessor could determine fill levels notwithstanding Condition 11 requiring calculated flood levels to be approved by the City Engineer.' 'Whether the Senior Assessor erred in deciding that a monetary contribution for external works could not be imposed as a condition of subdivision consent.' 'Whether the development consent remained subsisting at the relevant time.']

Ratio Decidendi

The Senior Assessor made no error of law in treating the annotated plans as not constituting a fresh application, in finding sufficient compliance with Ordinance 32, in concluding that the development consent was subsisting, and in determining fill levels under the Court's functions standing in the Council's shoes. However, the Senior Assessor erred in law by proceeding on the basis that the Court lacked power to impose a monetary contribution condition for external works as part of subdivision consent. The appropriate course was to set aside the subdivision order only so it could be remade after reconsideration of whether such a condition should be attached.

Court Disposition

Appeal allowed; Order 2 made by the Senior Assessor on 2 March 1988 set aside and the matter remitted for determination of whether a contribution condition should be attached.

Orders

  • ['Appeal allowed.' 'Order 2 of the Court constituted by the Senior Assessor made on 2 March 1988 be set aside.' 'Remit the proceedings to the Senior Assessor for determination in accordance with this judgment of the question whether the above order should be remade with or without a condition for contribution...