Dakin & Anor v Lismore City Council [2008] NSWLEC 1113

Dakin & Anor v Lismore City Council [2008] NSWLEC 1113

The Court lacked jurisdiction to determine the challenge to condition 25, but the agreed further plan modifications were within s 96 because the development as modified remained substantially the same as originally approved. Removal of the kitchen elements meant the old school house would no longer be capable of being a dwelling under the Lismore Local Environmental Plan, removing the basis for the s 94 contribution in condition 24; condition 26 was redundant because an approved building application for the bathroom had been found.

Jurisdiction
Australia
Judgment Date
07 February 2008
Procedural Posture
Appeal Concerning Modification of Development Consent Under S 96 of the Environmental Planning and Assessment Act 1979 / Extempore Judgment
Outcome
Appeal upheld by consent to the extent discussed; development consent modified and conditions amended.
Legal Topics
['developer Charges' 'headworks Charges' 'modification of Development Consent' 'jurisdiction' 'section 94 Contributions' 'section 64 Contributions']
['environmental Planning and Assessment' 'local Government' 'water Management' 'development Consent'] ['developer Charges' 'headworks Charges' 'modification of Development Consent' 'jurisdiction' 'section 94 Contributions' 'section 64 Contributions']

Case Brief

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Procedural Posture

Appeal Concerning Modification of Development Consent Under S 96 of the Environmental Planning and Assessment Act 1979 / Extempore Judgment

Legal Issues

  1. 1 ['Whether conditions 24 and 25 of the development consent should be deleted by modification under s 96 of the Environmental Planning and Assessment Act 1979.' 'Whether the Court had jurisdiction to deal with condition 25 concerning contributions levied under s 64 of the Local Government Act 1993 and s 306 of the Water Management Act 2000.' 'Whether further modifications to the plans would leave the approved development substantially the same as the development originally approved.' 'Whether the old school house would remain a separate domicile or dwelling within the meaning of the Lismore Local Environmental Plan after removal of kitchen elements.']

Ratio Decidendi

The Court lacked jurisdiction to determine the challenge to condition 25, but the agreed further plan modifications were within s 96 because the development as modified remained substantially the same as originally approved. Removal of the kitchen elements meant the old school house would no longer be capable of being a dwelling under the Lismore Local Environmental Plan, removing the basis for the s 94 contribution in condition 24; condition 26 was redundant because an approved building application for the bathroom had been found.

Court Disposition

Appeal upheld by consent to the extent discussed; development consent modified and conditions amended.

Orders

  • ['The appeal is upheld, by consent, to the extent discussed above.' 'The development consent will be modified in the terms of the plan noted in paragraph 13.' 'The conditions of consent will be amended to reflect the requirement to remove the elements of the kitchen structures in the school house within 6 months...