Progress & Securities Building Pty Limited v Burwood Council & Anor (No 2) [2008] NSWLEC 135

Progress & Securities Building Pty Limited v Burwood Council & Anor (No 2) [2008] NSWLEC 135

Section 93I(3) EPA Act empowers the consent authority (and Court on appeal) to impose a condition requiring a planning agreement on a modification application if based on a developer's offer, but the Court cannot require the consent authority to actually enter into a planning agreement; the s 94 power to impose contribution conditions is not available on modification applications where no s 94 condition exists in the original consent.

Jurisdiction
Australia
Judgment Date
11 April 2008
Procedural Posture
Appeal / Determination of Separate Questions Prior to Merits Hearing
Outcome
Questions answered as follows: 1A Yes; 1 No; 3 No; 4 Does not arise.
Legal Topics
['development Consent Modification' 'planning Agreements' 'development Contributions' 'interpretation of Statutory Powers']
['planning and Environment Law'] ['development Consent Modification' 'planning Agreements' 'development Contributions' 'interpretation of Statutory Powers']

Case Brief

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Procedural Posture

Appeal / Determination of Separate Questions Prior to Merits Hearing

Legal Issues

  1. 1 ['Whether s 93I(3) EPA Act power is available for modification applications under s 96AA' 'Whether Court can require consent authority to enter into a planning agreement under s 39(2) Land and Environment Court Act' 'Whether s 94 power to impose contribution conditions is available on modification application' 'If s 94 power is available, whether contributions under existing planning agreement must be considered when levying further contributions']

Ratio Decidendi

Section 93I(3) EPA Act empowers the consent authority (and Court on appeal) to impose a condition requiring a planning agreement on a modification application if based on a developer's offer, but the Court cannot require the consent authority to actually enter into a planning agreement; the s 94 power to impose contribution conditions is not available on modification applications where no s 94 condition exists in the original consent.

Court Disposition

Questions answered as follows: 1A Yes; 1 No; 3 No; 4 Does not arise.

Orders

  • ['Question 1A answered: Yes.' 'Question 1 answered: No.' 'Question 3 answered: No.' 'Question 4: Does not arise.']