Nicholas Black Architects Pty Ltd v Sydney City Council [2007] NSWLEC 373

Nicholas Black Architects Pty Ltd v Sydney City Council [2007] NSWLEC 373

Condition 30 did not clearly require the applicant to carry out all public domain works shown in the public domain plan and was at best ambiguous; that ambiguity was to be resolved against the council. In any event, even if the condition imposed that obligation, requiring the applicant to undertake all public domain works would not be reasonable under the Newbury tests because the applicant's proposed works were a sufficient response to the increased use of the public domain by hotel patrons. The appeal was therefore upheld and the consent amended as sought, with an additional make-good requirement.

Jurisdiction
Australia
Judgment Date
25 May 2007
Procedural Posture
Appeal Concerning a S 96 Modification Application to Amend Conditions of Development Consent / Ex Tempore Judgment
Outcome
Appeal upheld; development consent amended.
Legal Topics
['modification of Development Consent' 'conditions of Consent' 'public Domain Works' 'smart Poles' 'reasonableness and Certainty of Planning Conditions']
['planning and Environment Law'] ['modification of Development Consent' 'conditions of Consent' 'public Domain Works' 'smart Poles' 'reasonableness and Certainty of Planning Conditions']

Case Brief

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Procedural Posture

Appeal Concerning a S 96 Modification Application to Amend Conditions of Development Consent / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether condition 30 required the applicant to carry out all works associated with the public domain plan at its own cost.' "Whether the absence of changed circumstances and the applicant's acceptance of the benefit of the development consent prevented or weighed against modification under s 96 of the Environmental Planning and Assessment Act 1979." 'Whether, if condition 30 required the applicant to carry out all public domain works, that requirement would be reasonable according to the Newbury tests.' "Whether the development consent should be modified to delete the requirement that smart poles be provided at the applicant's cost and to specify the public domain works the applicant must carry out."]

Ratio Decidendi

Condition 30 did not clearly require the applicant to carry out all public domain works shown in the public domain plan and was at best ambiguous; that ambiguity was to be resolved against the council. In any event, even if the condition imposed that obligation, requiring the applicant to undertake all public domain works would not be reasonable under the Newbury tests because the applicant's proposed works were a sufficient response to the increased use of the public domain by hotel patrons. The appeal was therefore upheld and the consent amended as sought, with an additional make-good requirement.

Court Disposition

Appeal upheld; development consent amended.

Orders

  • ['The appeal is upheld.' 'Development consent D2003/765 for the renovation and refurbishment of the existing hotel at 248 William Street, Potts Point is amended by the deletion of the words "(to be provided at the applicant\'s cost)" in condition 30(c)(x).' 'Development consent D2003/765 is amended by the inclusion...