Scrap Realty Pty Limited v Botany Bay City Council [2008] NSWLEC 333

Scrap Realty Pty Limited v Botany Bay City Council [2008] NSWLEC 333

Section 96(2) empowered modification of the 1976 consent to add Lot 1 to the land to which the consent applied. On the facts, the added storage area was quantitatively minor and the proposed conditions and mitigation measures meant the modified development remained substantially the same development as originally approved. The environmental, stormwater, contamination, safety, fencing and amenity issues were satisfactorily addressed, and alleged unacceptable aspects of the current Lot 5 operation did not justify refusal because there was no evidence the modification would exacerbate those impacts.

Jurisdiction
Australia
Judgment Date
19 December 2008
Procedural Posture
Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application Under S 96(2) to Modify a Development Consent / Ex Tempore Judgment
Outcome
Appeal upheld; development consent number 76-T-11 dated 13 February 1976 modified.
Legal Topics
['section 96 Modification' 'storage of Scrap Ferrous and Non Ferrous Metals' 'substantially the Same Development' 'addition of Land to Development Consent' 'stormwater and Contamination Impacts' 'landscaping and Fencing Conditions']
['environmental Planning and Assessment' 'land and Environment Court' 'development Consent Modification'] ['section 96 Modification' 'storage of Scrap Ferrous and Non Ferrous Metals' 'substantially the Same Development' 'addition of Land to Development Consent' 'stormwater and Contamination Impacts' 'landscaping and Fencing Conditions']

Case Brief

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Procedural Posture

Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application Under S 96(2) to Modify a Development Consent / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether s 96(2) permitted modification of the 1976 consent to add Lot 1 as land to which the consent applied and on which the approved storage use could be carried out.' 'Whether the development as modified would be substantially the same development as the development for which consent was originally granted.' 'Whether the Court should refuse modification as a matter of discretion because the current use of Lot 5 was said to be environmentally unacceptable.' 'Whether landscaping was required in addition to fencing and retention of existing trees.' 'Whether proposed conditions adequately addressed fencing, safety, stormwater, contamination and amenity impacts.']

Ratio Decidendi

Section 96(2) empowered modification of the 1976 consent to add Lot 1 to the land to which the consent applied. On the facts, the added storage area was quantitatively minor and the proposed conditions and mitigation measures meant the modified development remained substantially the same development as originally approved. The environmental, stormwater, contamination, safety, fencing and amenity issues were satisfactorily addressed, and alleged unacceptable aspects of the current Lot 5 operation did not justify refusal because there was no evidence the modification would exacerbate those impacts.

Court Disposition

Appeal upheld; development consent number 76-T-11 dated 13 February 1976 modified.

Orders

  • ['The appeal is upheld.' 'Development consent number 76-T-11 dated 13 February 1976 is modified by amending the description of the premises to add Lot 5 in DP 627044, Lot 21 in DP 790427 and Lot 1 in DP 822273.' 'Condition 10 is deleted and replaced with a condition requiring materials to be stacked in islands of...