S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 151

S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 151

Properly construed, the deferred commencement consent granted consent only for a 19 lot Torrens title residential subdivision and did not approve, or impose binding conditions governing, any future community title subdivision of lots 4 and 8. Condition 1.1 required the submission of further information to the council's satisfaction so that the consent could become operative, and condition 1.3 did not create a binding precedent for future development approval. The consent was not a staged development consent under the Environmental Planning and Assessment Act 1979 because the community title subdivision was always to be the subject of a further development application and was not a later...

Jurisdiction
Australia
Judgment Date
23 August 2010
Procedural Posture
Class 4 Proceedings Concerning Construction of a Deferred Commencement Development Consent / Judgment on Amended Summons
Outcome
Amended summons dismissed.
Legal Topics
['development Consent' 'deferred Commencement Consent' 'community Title Subdivision' 'staged Development' 'construction of Development Consents' 'fettering Statutory Discretion']
['planning and Environment Law' 'administrative Law'] ['development Consent' 'deferred Commencement Consent' 'community Title Subdivision' 'staged Development' 'construction of Development Consents' 'fettering Statutory Discretion']

Case Brief

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Procedural Posture

Class 4 Proceedings Concerning Construction of a Deferred Commencement Development Consent / Judgment on Amended Summons

Legal Issues

  1. 1 ['Whether the development consent granted by Ballina Shire Council imposed conditions governing a community title subdivision of lots 4 and 8.' 'Whether any such conditions were incorporated into the Greenwood Grove Management Plan Version 2A accepted by the council pursuant to condition 1.1.' 'Whether the council was constrained in determining any future community title subdivision development application for lots 4 and 8 by its acceptance of material in satisfaction of condition 1.1.' 'Whether the applicant was constrained in any community title subdivision of lots 4 and 8 by the matters contained in the Management Plan.' 'Whether the development consent was a staged development consent under the Environmental Planning and Assessment Act 1979 as it stood at the time of consent.' "Whether the council's 24 February 2005 resolution advising non-acceptance of multiple dwellings on lots 4 and 8 was of any effect."]

Ratio Decidendi

Properly construed, the deferred commencement consent granted consent only for a 19 lot Torrens title residential subdivision and did not approve, or impose binding conditions governing, any future community title subdivision of lots 4 and 8. Condition 1.1 required the submission of further information to the council's satisfaction so that the consent could become operative, and condition 1.3 did not create a binding precedent for future development approval. The consent was not a staged development consent under the Environmental Planning and Assessment Act 1979 because the community title subdivision was always to be the subject of a further development application and was not a later...

Court Disposition

Amended summons dismissed.

Orders

  • ['The amended summons is dismissed.' "The applicant is to pay the respondent's costs of the proceedings unless within 14 days from the date of this order the applicant files a notice of motion in respect of the question of costs." 'The exhibits may be returned.']