S & R Properties Pty Limited v Ashfield Municipal Council [2007] NSWLEC 72

S & R Properties Pty Limited v Ashfield Municipal Council [2007] NSWLEC 72

The appeal is upheld as the council's proposed condition relating to the reconstruction of the footpath, contingent on possible carriageway narrowing, is unreasonable and lacks certainty. Consent to modify the development approval is granted subject to conditions, excluding the disputed condition.

Jurisdiction
Australia
Judgment Date
15 February 2007
Procedural Posture
Modification Appeal / Judgment
Outcome
appeal upheld and modification application granted
Legal Topics
['modification of Development Consent' 'conditions of Development Approval' 'heritage Significance' 'stormwater Management' 'materials and Finishes' 'damage Deposit']
['planning Law' 'environmental Law'] ['modification of Development Consent' 'conditions of Development Approval' 'heritage Significance' 'stormwater Management' 'materials and Finishes' 'damage Deposit']

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Procedural Posture

Modification Appeal / Judgment

Legal Issues

  1. 1 ['Whether the proposed modification complies with planning controls' "Whether the council's proposed condition regarding footpath reconstruction is reasonable" 'Compliance with stormwater management requirements' 'Impact of materials and finishes on heritage and streetscape' 'Appropriateness of damage deposit requirement']

Ratio Decidendi

The appeal is upheld as the council's proposed condition relating to the reconstruction of the footpath, contingent on possible carriageway narrowing, is unreasonable and lacks certainty. Consent to modify the development approval is granted subject to conditions, excluding the disputed condition.

Court Disposition

appeal upheld and modification application granted

Orders

  • ['The appeal under s 96AA(3) of the Environmental Planning and Assessment Act 1979 is upheld.' 'The modification application filed 31 October 2006 to amend the development consent granted by the Court on 19 March 2004 and subsequently amended by the respondent on 13 December 2005 be approved subject to Conditions A1...