Moss v Kiama Municipal Council [2003] NSWLEC 165

Moss v Kiama Municipal Council [2003] NSWLEC 165

Condition 18 of the 1999 development consent was construed as only requiring creation of the s 88B restriction on user and not as an independently operating prohibition on the form of future dwelling development. As there was no ongoing independent operation, the proposed development is not incapable of approval on the basis of breach of the prior consent’s condition.

Jurisdiction
Australia
Judgment Date
04 July 2003
Procedural Posture
Appeal (class 1 Proceedings Under S 97 Ep&a Act) / Preliminary Questions of Law Before Substantive Hearing
Outcome
preliminary questions of law answered—proposed development application is capable of approval without prior modification of previous consent
Legal Topics
['development Consent' 'conditions of Consent' 'statutory Planning Instruments' 'modification of Consent']
['planning and Environment Law'] ['development Consent' 'conditions of Consent' 'statutory Planning Instruments' 'modification of Consent']

Case Brief

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Procedural Posture

Appeal (class 1 Proceedings Under S 97 Ep&a Act) / Preliminary Questions of Law Before Substantive Hearing

Legal Issues

  1. 1 ['Does condition 18 of DA 112/97 apply to Lot 103 DP1035721?' 'Would the proposed dwelling contravene condition 18 of DA 112/97?' 'Is the new development application capable of approval without first modifying condition 18 of the prior consent?']

Ratio Decidendi

Condition 18 of the 1999 development consent was construed as only requiring creation of the s 88B restriction on user and not as an independently operating prohibition on the form of future dwelling development. As there was no ongoing independent operation, the proposed development is not incapable of approval on the basis of breach of the prior consent’s condition.

Court Disposition

preliminary questions of law answered—proposed development application is capable of approval without prior modification of previous consent

Orders

  • ['Question 1 answered Yes: condition 18 applies to Lot 103 DP1035721.' 'Question 2 answered Yes: proposed dwelling would involve contravention of condition 18.' 'Question 3 answered Yes: development application D247/02 is capable of approval without prior modification of the development consent DA112/97.' "Matter...