Songkal Pty Limited v Warringah Council [2001] NSWLEC 197

Songkal Pty Limited v Warringah Council [2001] NSWLEC 197

The appeal was upheld on the basis that (1) owner's consent over the triangle was not required as it was not part of the current application, (2) issues relating to lawful access could be dealt with by a deferred commencement consent requiring the applicant to secure access before the consent operates, and (3) the proposal complied sufficiently with the relevant planning controls, with the exceedence of the storey's control not being fatal in light of compliance with height limits and the plan's objectives.

Jurisdiction
Australia
Judgment Date
24 August 2001
Procedural Posture
Class 1 Proceedings (land and Environment Court of Nsw) / Appeal Against Refusal of Development Application; Judgment
Outcome
Appeal upheld; development consent granted subject to deferred commencement conditions.
Legal Topics
['development Applications' "owner's Consent" 'access Rights' 'deferred Commencement Consents' 'local Environmental Planning Instruments' 'development Control Plans']
['planning Law' 'environmental Law' 'administrative Law'] ['development Applications' "owner's Consent" 'access Rights' 'deferred Commencement Consents' 'local Environmental Planning Instruments' 'development Control Plans']

Case Brief

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Procedural Posture

Class 1 Proceedings (land and Environment Court of Nsw) / Appeal Against Refusal of Development Application; Judgment

Legal Issues

  1. 1 ["Whether owner's consent for access over Council-owned land (triangle) was required for the development application" 'Whether the development as proposed was permissible under the relevant planning instruments (WLEP 1985, WLEP 2000, DCP 24)' 'Whether the proposal complied with relevant development standards, including height and storeys limits' 'Whether deferred commencement consent is appropriate when access rights are unresolved']

Ratio Decidendi

The appeal was upheld on the basis that (1) owner's consent over the triangle was not required as it was not part of the current application, (2) issues relating to lawful access could be dealt with by a deferred commencement consent requiring the applicant to secure access before the consent operates, and (3) the proposal complied sufficiently with the relevant planning controls, with the exceedence of the storey's control not being fatal in light of compliance with height limits and the plan's objectives.

Court Disposition

Appeal upheld; development consent granted subject to deferred commencement conditions.

Orders

  • ['The appeal be upheld.' 'Consent is granted to development application No DA 2000/5096 in accordance with attached conditions.' 'Consent is deferred pursuant to section 80(3) of the Environmental Planning and Assessment Act 1979 until proof of right of carriageway or transfer of title to the triangle is provided.'...