Malcolm Smith Pty. Limited v The Hills Shire Council [2019] NSWLEC 1096

Malcolm Smith Pty. Limited v The Hills Shire Council [2019] NSWLEC 1096

Although the Court had power under s 7.13(3) and s 4.55 to consider amending the s 7.11 contribution conditions, the conditions were not unreasonable in the particular circumstances. Section 7.20(4) and cl 5 of the Current Plan preserved the Existing Plan, the consent had been commenced, the development was likely to generate the relevant demand, and it would be contrary to the public interest to allow the applicant to retain the benefit of an eight lot consent granted under earlier planning and biodiversity controls while avoiding the contribution burden calculated under the plan applicable to that consent.

Jurisdiction
Australia
Judgment Date
07 March 2019
Procedural Posture
Class 1 Appeal Concerning a Modification Application to Development Consent Conditions for Development Contributions / Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 From Refusal of a Modification Application
Outcome
Appeal dismissed; modification application refused.
Legal Topics
['modification of Development Consent' 'section 7.11 Contributions' 'section 7.12 Contributions Plan' 'repeal and Transitional Operation of Contributions Plans' 'reasonableness of Development Consent Conditions' 'public Amenities and Services Demand']
['planning and Environment Law' 'development Contributions' 'local Government'] ['modification of Development Consent' 'section 7.11 Contributions' 'section 7.12 Contributions Plan' 'repeal and Transitional Operation of Contributions Plans' 'reasonableness of Development Consent Conditions' 'public Amenities and Services Demand']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Concerning a Modification Application to Development Consent Conditions for Development Contributions / Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 From Refusal of a Modification Application

Legal Issues

  1. 1 ['Whether the Court had power on appeal to amend or disallow contribution conditions imposed under s 7.11 of the Environmental Planning and Assessment Act 1979.' 'Whether contribution conditions imposed under Contributions Plan No.2 – West Pennant Hills Valley, North West Sub-Precinct were unreasonable because that plan had been repealed and replaced by The Hills Section 7.12 Contributions Plan.' 'Whether the applicant should be permitted to retain the benefit of an existing commenced eight lot subdivision consent while having contributions calculated under the later Current Plan.' 'Whether the demand for public amenities and services had been generated or was likely to be generated by the development.']

Ratio Decidendi

Although the Court had power under s 7.13(3) and s 4.55 to consider amending the s 7.11 contribution conditions, the conditions were not unreasonable in the particular circumstances. Section 7.20(4) and cl 5 of the Current Plan preserved the Existing Plan, the consent had been commenced, the development was likely to generate the relevant demand, and it would be contrary to the public interest to allow the applicant to retain the benefit of an eight lot consent granted under earlier planning and biodiversity controls while avoiding the contribution burden calculated under the plan applicable to that consent.

Court Disposition

Appeal dismissed; modification application refused.

Orders

  • ['The appeal is dismissed.' 'The exhibits, apart from Exhibits C and D, are returned.']