Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99

Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99

The mere fact of past unlawful use by the applicant is not a relevant consideration in determining whether to grant or modify a development consent under s 96(2) of the Environmental Planning and Assessment Act 1979. Therefore, paragraph 4 of the statement of issues alleging past breaches is struck out as irrelevant.

Jurisdiction
Australia
Judgment Date
02 March 2006
Procedural Posture
Class 1 Application to Modify Development Consent / Interlocutory Motion to Strike Out Issue
Outcome
Applicant's notice of motion to strike out issue successful.
Legal Topics
['development Consent Modification' 'relevance of Past Unlawful Use' 'planning Merits' 'procedural Matters']
['planning Law' 'administrative Law'] ['development Consent Modification' 'relevance of Past Unlawful Use' 'planning Merits' 'procedural Matters']

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Procedural Posture

Class 1 Application to Modify Development Consent / Interlocutory Motion to Strike Out Issue

Legal Issues

  1. 1 ['Whether past unlawful use of the restaurant is a relevant consideration in modifying development consent under s 96(2) of the Environmental Planning and Assessment Act 1979' 'Whether paragraph 4 of the statement of issues raising past breaches should be struck out']

Ratio Decidendi

The mere fact of past unlawful use by the applicant is not a relevant consideration in determining whether to grant or modify a development consent under s 96(2) of the Environmental Planning and Assessment Act 1979. Therefore, paragraph 4 of the statement of issues alleging past breaches is struck out as irrelevant.

Court Disposition

Applicant's notice of motion to strike out issue successful.

Orders

  • ['Paragraph 4 of the draft Statement of Issues dated 21 November 2005 and of the Statement of Issues dated 17 February 2006 are struck out.' "The Respondent is to pay the Applicant's costs of the Applicant's Notice of Motion dated 23 November 2005."]