Kendall Street Developments Pty Limited v Byron Shire Council (No. 2) [2004] NSWLEC 530

Kendall Street Developments Pty Limited v Byron Shire Council (No. 2) [2004] NSWLEC 530

Because condition D2 limited the development rather than extinguishing the consent, the development consent continued to exist and could be the subject of a modification application under s 96 of the Environmental Planning and Assessment Act 1979. However, s 96 contains no clear language giving modifications retrospective operation, the statutory scheme requires lawfulness to be assessed at the relevant time, and retrospective operation could produce absurd consequences. Any modification of condition D2 would operate prospectively only and therefore would not render the use of the land lawful at 9 March 2001 for the purposes of s 106.

Jurisdiction
Australia
Judgment Date
29 September 2004
Procedural Posture
Appeal Against Deemed Refusal of an Application to Modify a Development Consent; Separate Determination of Questions of Law / Preliminary Questions of Law
Outcome
Question 1 answered Yes; Question 2 answered No.
Legal Topics
['modification of Development Consent Under S 96 of the Environmental Planning and Assessment Act 1979' 'effect of Breach of Development Consent Condition' 'prospective or Retrospective Operation of Modification' 'lawfulness of Use for Existing Use Rights Under S 106 of the Environmental Planning and Assessment Act 1979']
['environmental Planning and Assessment' 'land and Environment' 'development Consent Modification' 'existing Use Rights'] ['modification of Development Consent Under S 96 of the Environmental Planning and Assessment Act 1979' 'effect of Breach of Development Consent Condition' 'prospective or Retrospective Operation of Modification' 'lawfulness of Use for Existing Use Rights Under S 106 of the Environmental Planning and Assessment Act 1979']

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Procedural Posture

Appeal Against Deemed Refusal of an Application to Modify a Development Consent; Separate Determination of Questions of Law / Preliminary Questions of Law

Legal Issues

  1. 1 ['Whether condition D2 of development consent 90/208 granted 19 February 1991 can be the subject of a modification application pursuant to s 96 of the Environmental Planning and Assessment Act 1979.' 'Whether modification of condition D2 in the manner proposed, or at all, would render lawful the use of the land at the relevant date for the purposes of s 106 of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

Because condition D2 limited the development rather than extinguishing the consent, the development consent continued to exist and could be the subject of a modification application under s 96 of the Environmental Planning and Assessment Act 1979. However, s 96 contains no clear language giving modifications retrospective operation, the statutory scheme requires lawfulness to be assessed at the relevant time, and retrospective operation could produce absurd consequences. Any modification of condition D2 would operate prospectively only and therefore would not render the use of the land lawful at 9 March 2001 for the purposes of s 106.

Court Disposition

Question 1 answered Yes; Question 2 answered No.

Orders

  • ['Question (1): Whether condition D2 of development consent 90/208 granted 19 February 1991 can be the subject of a modification application pursuant to s 96 of the Environmental Planning and Assessment Act 1979. Answer: Yes.' 'Question (2): If the answer to question (1) is yes, would modification of condition D2 of...