Jacklion Enterprises Pty Ltd v. Sutherland Shire Council [1998] NSWLEC 145

Jacklion Enterprises Pty Ltd v. Sutherland Shire Council [1998] NSWLEC 145

The application seeks modification of a condition controlling the use of land, not the development (subdivision) itself, and does not amount to granting retrospective development consent for building works already carried out; thus, the Court has power to consider the modification application.

Jurisdiction
Australia
Judgment Date
08 July 1998
Procedural Posture
Referred Question of Law (s 36(5) Land and Environment Court Act 1979) / Determination of Referred Legal Question Prior to Hearing Completion
Outcome
Legal question answered in the affirmative; matter to proceed to hearing; no order as to costs.
Legal Topics
['modification of Development Consent' 'retrospective Development Approval' 'subdivision Conditions' 'land Use Restrictions']
['planning and Environment Law'] ['modification of Development Consent' 'retrospective Development Approval' 'subdivision Conditions' 'land Use Restrictions']

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Procedural Posture

Referred Question of Law (s 36(5) Land and Environment Court Act 1979) / Determination of Referred Legal Question Prior to Hearing Completion

Legal Issues

  1. 1 ['Whether the Court has power to consider an application for modification of a development consent condition under s 102 of the Environmental Planning and Assessment Act 1979 when works have already been carried out']

Ratio Decidendi

The application seeks modification of a condition controlling the use of land, not the development (subdivision) itself, and does not amount to granting retrospective development consent for building works already carried out; thus, the Court has power to consider the modification application.

Court Disposition

Legal question answered in the affirmative; matter to proceed to hearing; no order as to costs.

Orders

  • ['The question of law is answered: Yes, the Court has power to consider the modification application under s 102 of the Environmental Planning and Assessment Act 1979.' 'Parties granted leave to approach Registrar for date for resumed hearing.' 'No order as to costs.']