Jonathan and Ors v Lismore City Council [2002] NSWLEC 134

Jonathan and Ors v Lismore City Council [2002] NSWLEC 134

Condition 2 was not invalid merely because the 1994 Plan had been repealed, and the applicant did not establish that the contribution was unreasonable. The 1999 Plan made allowances for rural land sharing communities, remoteness and lower-intensity development, and the contribution should not be recalculated by reference to the personal characteristics or assumed modest demands of particular occupants. Discretionary factors, including the prior judgment imposing condition 2, absence of changed circumstances, and non-payment of any instalments, weighed against the applicant's proposed reduction. However, it was appropriate to vary condition 2 in the manner proposed by the council, reducing...

Jurisdiction
Australia
Judgment Date
09 August 2002
Procedural Posture
Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify Conditions of a Development Consent for Use of Land as a Multiple Occupancy / Judgment Determining the Outstanding Application to Delete or Vary Condition 2 Concerning S 94 Contributions After Other Modifications Were Agreed
Outcome
Condition 2 of the development consent was modified in the terms proposed by the council; exhibits except exhibit N were to be returned; no order as to costs.
Legal Topics
['development Consent Modification' 'rural Land Sharing Community' 'multiple Occupancy' 'section 94 Contributions' 'validity and Repeal of Contributions Plan' 'reasonableness of Contributions']
['environmental Planning and Development' 'local Government Contributions' 'land and Environment'] ['development Consent Modification' 'rural Land Sharing Community' 'multiple Occupancy' 'section 94 Contributions' 'validity and Repeal of Contributions Plan' 'reasonableness of Contributions']

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Procedural Posture

Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify Conditions of a Development Consent for Use of Land as a Multiple Occupancy / Judgment Determining the Outstanding Application to Delete or Vary Condition 2 Concerning S 94 Contributions After Other Modifications Were Agreed

Legal Issues

  1. 1 ['Whether repeal of the Lismore Contributions Plan 1994 by the Lismore Contributions Plan 1999 meant condition 2 should be deleted because the 1994 Plan no longer provided a valid basis for the s 94 contribution' 'Whether the s 94 contribution imposed by condition 2 was unreasonable in the circumstances of the Jiggi rural land sharing community' 'Whether the Court should exercise its discretion under s 94(12) and s 96 of the Environmental Planning and Assessment Act 1979 to vary condition 2' 'Whether condition 2 should be varied in the manner proposed by the council, reducing the contribution and linking payment to certificates for each equivalent tenement']

Ratio Decidendi

Condition 2 was not invalid merely because the 1994 Plan had been repealed, and the applicant did not establish that the contribution was unreasonable. The 1999 Plan made allowances for rural land sharing communities, remoteness and lower-intensity development, and the contribution should not be recalculated by reference to the personal characteristics or assumed modest demands of particular occupants. Discretionary factors, including the prior judgment imposing condition 2, absence of changed circumstances, and non-payment of any instalments, weighed against the applicant's proposed reduction. However, it was appropriate to vary condition 2 in the manner proposed by the council, reducing...

Court Disposition

Condition 2 of the development consent was modified in the terms proposed by the council; exhibits except exhibit N were to be returned; no order as to costs.

Orders

  • ['Pursuant to s 96 of the Environmental Planning and Assessment Act 1979, condition 2 of the development consent granted by the Court on 15 June 1995 is modified by substituting a condition requiring payment of contributions under Section 94 of the Environmental Planning and Assessment Act and Lismore Contributions...