Young v Ballina Shire Council [2019] NSWLEC 1131

Young v Ballina Shire Council [2019] NSWLEC 1131

The modified development was substantially the same as the approved development because the covered walkway was only a quantitatively minor aspect and, although previously technically necessary for permissibility as an attached dual occupancy, it was not part of the essence of the physical development, which remained the change of use of the shed to a dwelling forming part of a dual occupancy. There was a sufficient nexus between the additional dwelling and the road, open space and community facility works under the applicable contribution plans. The contributions were calculated in accordance with the plans, and Mr Young did not provide sufficient evidence that the development would...

Jurisdiction
Australia
Judgment Date
02 April 2019
Procedural Posture
Class 1 Appeal Concerning a Modification Application Under S 4.55 of the Environmental Planning and Assessment Act 1979 / Decision After Mandatory Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979; Parties Did Not Reach Agreement But Agreed to Disposal by the Commissioner
Outcome
Appeal upheld; modification application granted for changing the proposed use to dual occupancy and removing the covered walkway, but condition 5 requiring development contributions remained.
Legal Topics
['substantially the Same Development Under S 4.55(2)' 'dual Occupancy Permissibility' 'removal of Covered Walkway Condition' 'section 7.11 Contributions' 'reasonableness of Contributions Under S 7.13(3)' 'nexus Between Development and Public Amenities or Services']
['planning and Environment Law' 'development Consent Modification' 'developer Contributions'] ['substantially the Same Development Under S 4.55(2)' 'dual Occupancy Permissibility' 'removal of Covered Walkway Condition' 'section 7.11 Contributions' 'reasonableness of Contributions Under S 7.13(3)' 'nexus Between Development and Public Amenities or Services']

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Procedural Posture

Class 1 Appeal Concerning a Modification Application Under S 4.55 of the Environmental Planning and Assessment Act 1979 / Decision After Mandatory Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979; Parties Did Not Reach Agreement But Agreed to Disposal by the Commissioner

Legal Issues

  1. 1 ['Whether the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.' 'Whether the change from dual occupancy (attached) to dual occupancy and removal of the covered walkway and condition 9 could be approved.' 'Whether there was a sufficient nexus under s 7.11 of the Environmental Planning and Assessment Act 1979 between the approved development and the works funded by the Roads Plan and Open Space Plan.' 'Whether the development contributions imposed by condition 5 were unreasonable in the particular circumstances of the case under s 7.13(3) of the Environmental Planning and Assessment Act 1979.' "Whether the Council's secondary dwellings contributions waiver policy supported deletion, waiver or reduction of the contributions."]

Ratio Decidendi

The modified development was substantially the same as the approved development because the covered walkway was only a quantitatively minor aspect and, although previously technically necessary for permissibility as an attached dual occupancy, it was not part of the essence of the physical development, which remained the change of use of the shed to a dwelling forming part of a dual occupancy. There was a sufficient nexus between the additional dwelling and the road, open space and community facility works under the applicable contribution plans. The contributions were calculated in accordance with the plans, and Mr Young did not provide sufficient evidence that the development would...

Court Disposition

Appeal upheld; modification application granted for changing the proposed use to dual occupancy and removing the covered walkway, but condition 5 requiring development contributions remained.

Orders

  • ['The appeal is upheld.' 'The application to modify the development consent granted by Ballina Shire Council in DA 2017/321 by changing the proposed use to dual occupancy and removing the covered walkway, is granted subject to the conditions in Annexure A.' 'The development consent granted by Ballina Shire Council...