Gann & Anor v Sutherland Shire Council [2008] NSWLEC 157

Gann & Anor v Sutherland Shire Council [2008] NSWLEC 157

There was no legal impediment to modifying the consent despite infringement of the LEP development standards for maximum building height, maximum gross floor area and minimum landscaped area. Section 96 is a stand-alone modification power not subject to s 76A(1), and s 96(4) provides that modification is not the granting of development consent. The LEP standards must be considered under s 96(3) and s 79C, but they do not operate as an absolute prohibition, and a SEPP No. 1 objection is not required for the modification application.

Jurisdiction
Australia
Judgment Date
24 April 2008
Procedural Posture
Class 1 Appeal Concerning Refusal to Modify a Development Consent / Separate Determination of a Question of Law Under R 28.2 of the Uniform Civil Procedure Rules 2005
Outcome
The question of law was answered yes.
Legal Topics
['modification of Development Consent' 'development Standards' 'local Environmental Plan Non Compliance' 'state Environmental Planning Policy No. 1 Objections' 'section 96 of the Environmental Planning and Assessment Act 1979']
['environmental Planning and Development Law' 'land and Environment Court Procedure'] ['modification of Development Consent' 'development Standards' 'local Environmental Plan Non Compliance' 'state Environmental Planning Policy No. 1 Objections' 'section 96 of the Environmental Planning and Assessment Act 1979']

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Procedural Posture

Class 1 Appeal Concerning Refusal to Modify a Development Consent / Separate Determination of a Question of Law Under R 28.2 of the Uniform Civil Procedure Rules 2005

Legal Issues

  1. 1 ['Whether the Court as consent authority has power to modify Development Application No. 04/0950 where the modification results in non-compliance with cll 33(4), 35(5) and 36(3) of Sutherland Shire Local Environmental Plan 2006.' 'Whether s 76A(1) of the Environmental Planning and Assessment Act 1979 prevents approval of a s 96 modification that would not comply with an environmental planning instrument.' 'Whether an objection under State Environmental Planning Policy No. 1 - Development Standards is required or available for the proposed modification.']

Ratio Decidendi

There was no legal impediment to modifying the consent despite infringement of the LEP development standards for maximum building height, maximum gross floor area and minimum landscaped area. Section 96 is a stand-alone modification power not subject to s 76A(1), and s 96(4) provides that modification is not the granting of development consent. The LEP standards must be considered under s 96(3) and s 79C, but they do not operate as an absolute prohibition, and a SEPP No. 1 objection is not required for the modification application.

Court Disposition

The question of law was answered yes.

Orders

  • ['The Court as consent authority has the power to modify the consent to Development Application No. 04/0950 where the modification results in non-compliance with cll 33(4), 35(5) and 36(3) of Sutherland Shire Local Environmental Plan 2006.' 'The exhibits may be returned.']