Kevin Snell Pty Limited v Manly Council [2005] NSWLEC 193

Kevin Snell Pty Limited v Manly Council [2005] NSWLEC 193

The Council's right to restrict development by serving notice under the 'realignment method' provided by s 262(3) of the repealed Local Government Act 1919 did not accrue before repeal, as no notice was served by that date. Accordingly, no accrued right was preserved by s 30 of the Interpretation Act 1987 or transitional provisions in the Roads Act 1993. Thus, the current application can be determined without reference to s 26 of the Roads Act 1993. Considering the planning controls, social, environmental, and amenity impacts can be adequately addressed through appropriate conditions. The development application should be approved subject to such conditions.

Jurisdiction
Australia
Judgment Date
27 May 2005
Procedural Posture
Development Application Appeal / Judgment After Hearing
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Consent' 'road Widening' 'transitional Provisions' 'social Impacts' 'noise and Amenity' 'car Parking' 'interpretation of Statutory Rights']
['planning and Environment Law' 'administrative Law'] ['development Consent' 'road Widening' 'transitional Provisions' 'social Impacts' 'noise and Amenity' 'car Parking' 'interpretation of Statutory Rights']

Case Brief

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Procedural Posture

Development Application Appeal / Judgment After Hearing

Legal Issues

  1. 1 ['Whether a notice served by Council in 2004 under s 262(3) of the repealed Local Government Act 1919 could validly operate to restrict development given its late service and transitional provisions in the Roads Act 1993 and Interpretation Act 1987.' 'Whether a relevant right existed in the Council to support serving a notice and perfecting the road widening order.' 'Whether the proposed development could be approved having regard to social impacts, amenity, noise, parking, loading/unloading, and compliance with planning controls.']

Ratio Decidendi

The Council's right to restrict development by serving notice under the 'realignment method' provided by s 262(3) of the repealed Local Government Act 1919 did not accrue before repeal, as no notice was served by that date. Accordingly, no accrued right was preserved by s 30 of the Interpretation Act 1987 or transitional provisions in the Roads Act 1993. Thus, the current application can be determined without reference to s 26 of the Roads Act 1993. Considering the planning controls, social, environmental, and amenity impacts can be adequately addressed through appropriate conditions. The development application should be approved subject to such conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development consent is granted for alterations and additions to the existing three-storey building at 36-38 South Steyne for use as a hotel, subject to conditions in Annexure A.' 'Exhibit 3 is retained.' 'No order as to costs.' 'Liberty to apply in relation to condition 71 of the conditions...