Garey & Anor v Great Lakes Council [2005] NSWLEC 563

Garey & Anor v Great Lakes Council [2005] NSWLEC 563

Conditions 1(a) and 1(b) were within power because the s 96 application plans sought approval for patio areas and full height masonry walls that were not within the original development consent as properly understood from conditions 8 and 9 and the plans. The Council could therefore impose conditions deleting those parts of the patios and masonry walls, and the Applicants' requested orders on the preliminary question of law were refused.

Jurisdiction
Australia
Judgment Date
14 September 2005
Procedural Posture
Class 1 Appeal Against Conditions Imposed in Relation to a Modification of Development Consent Under S 96 of the Environmental Planning and Assessment Act 1979 / Preliminary Question of Law; Ex Tempore Judgment
Outcome
The Applicants were unsuccessful on the preliminary question of law; the Court did not make the orders sought, awarded the Council its costs, ordered the exhibits returned, and listed the matter for callover.
Legal Topics
['modification of Development Consent' 'validity of Development Consent Conditions' 'council Power Under S 96' 'costs on Preliminary Question of Law']
['planning and Environment Law'] ['modification of Development Consent' 'validity of Development Consent Conditions' 'council Power Under S 96' 'costs on Preliminary Question of Law']

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Procedural Posture

Class 1 Appeal Against Conditions Imposed in Relation to a Modification of Development Consent Under S 96 of the Environmental Planning and Assessment Act 1979 / Preliminary Question of Law; Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether conditions 1(a) and 1(b) of the development consent as amended by the respondent on 18 August 2005 were void and of no effect because they were made outside the Council's power." 'Whether the s 96 consent could require deletion of patio areas and full height masonry walls shown on the modification plans.']

Ratio Decidendi

Conditions 1(a) and 1(b) were within power because the s 96 application plans sought approval for patio areas and full height masonry walls that were not within the original development consent as properly understood from conditions 8 and 9 and the plans. The Council could therefore impose conditions deleting those parts of the patios and masonry walls, and the Applicants' requested orders on the preliminary question of law were refused.

Court Disposition

The Applicants were unsuccessful on the preliminary question of law; the Court did not make the orders sought, awarded the Council its costs, ordered the exhibits returned, and listed the matter for callover.

Orders

  • ["The Applicants pay the Council's costs of the preliminary question of law proceedings;" 'The exhibits be returned;' "The matter be placed on the Registrar's callover list on 28 September 2005."]