Rushmist Pty Limited v. Ballina Shire Council [1998] NSWLEC 106

Rushmist Pty Limited v. Ballina Shire Council [1998] NSWLEC 106

The plans submitted with the building application, when compared with the plans lodged for development consent no. 81/400, were substantially the same. The discrepancies were minor in scale, mostly internal or not altering the proposed buildings in any major way. Accordingly, the proposed building the subject of the appeal was the same development as that the subject of the development consent, and no separate or modified development consent was required for that reason.

Jurisdiction
Australia
Judgment Date
28 October 1998
Procedural Posture
Class 2 Application Against Refusal of a Building Application / Question of Law Under Part 31 of the Rules of the Supreme Court of New South Wales 1970 Incorporated by Part 6 Rule 1 of the Land and Environment Court Rules 1996
Outcome
Question of law answered in the affirmative for the Applicant: the proposed building was the same development as that the subject of development consent no. 81/400.
Legal Topics
['development Consent' 'building Application' 'same Development' 'substantially the Same Building' 'transitional Provisions' 'section 94 Contributions']
['planning and Environment Law' 'local Government Law'] ['development Consent' 'building Application' 'same Development' 'substantially the Same Building' 'transitional Provisions' 'section 94 Contributions']

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Procedural Posture

Class 2 Application Against Refusal of a Building Application / Question of Law Under Part 31 of the Rules of the Supreme Court of New South Wales 1970 Incorporated by Part 6 Rule 1 of the Land and Environment Court Rules 1996

Legal Issues

  1. 1 ['Whether the proposed building the subject of the proceedings required development consent pursuant to the Environmental Planning and Assessment Act 1979 or was the same development as the building the subject of development consent no. 81/400 issued on 8 September 1981.' 'Whether the plans submitted with the building application were substantially in accordance with the development consent.']

Ratio Decidendi

The plans submitted with the building application, when compared with the plans lodged for development consent no. 81/400, were substantially the same. The discrepancies were minor in scale, mostly internal or not altering the proposed buildings in any major way. Accordingly, the proposed building the subject of the appeal was the same development as that the subject of the development consent, and no separate or modified development consent was required for that reason.

Court Disposition

Question of law answered in the affirmative for the Applicant: the proposed building was the same development as that the subject of development consent no. 81/400.

Orders

  • ['The proposed building, the subject of the appeal pending before the Court, can be said to be the same development as that which is the subject of the development consent.']