Progress & Securities Pty Ltd v North Sydney Municipal Council [1988] NSWLEC 11

Progress & Securities Pty Ltd v North Sydney Municipal Council [1988] NSWLEC 11

The Court has power under s.102(1) to modify a development consent, including deleting a condition, but where the applicant has accepted the benefit of consent and fulfilled the challenged condition without protest and in the absence of change in circumstances since consent, the discretion to modify should not be exercised.

Jurisdiction
Australia
Judgment Date
19 August 1988
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed
Legal Topics
['modification of Development Consent' 'discretion in Planning Appeals' 'section 102 Environmental Planning and Assessment Act' 'validity of Planning Conditions']
['planning Law' 'administrative Law'] ['modification of Development Consent' 'discretion in Planning Appeals' 'section 102 Environmental Planning and Assessment Act' 'validity of Planning Conditions']

Case Brief

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether s.102(1) Environmental Planning and Assessment Act 1979 permits modification of a development consent by deleting a condition after acceptance and implementation of the consent' 'Whether discretionary factors preclude exercise of the modification power where no change of circumstances has occurred since the original consent' 'Whether the relevant condition (D22) was invalid or unreasonable and should be deleted']

Ratio Decidendi

The Court has power under s.102(1) to modify a development consent, including deleting a condition, but where the applicant has accepted the benefit of consent and fulfilled the challenged condition without protest and in the absence of change in circumstances since consent, the discretion to modify should not be exercised.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal under s.102(5) of the Environmental Planning and Assessment Act 1979 is dismissed.' 'The exhibits may be returned.']