Squadron Pty Ltd AFT Garrison Unity Trust v Wyong Shire Council [2007] NSWLEC 336

Squadron Pty Ltd AFT Garrison Unity Trust v Wyong Shire Council [2007] NSWLEC 336

The s96 modification appeal was allowed because no extraordinary circumstances justified retaining conditions 30 and 31 requiring registered restrictive covenants; the flood-related building restrictions could be addressed by consent conditions and an advisory note. The dual occupancy appeal was allowed because the amended proposal satisfied the relevant s 79C considerations, with flood and noise impacts adequately managed by conditions, while the deferred commencement condition and drainage covenant condition were reasonably required for orderly development and ongoing maintenance of the drainage system.

Jurisdiction
Australia
Judgment Date
08 June 2007
Procedural Posture
Appeals Concerning Development Applications for Subdivision and Dual Occupancy Development / Judgment After Hearing and View
Outcome
Both appeals allowed; the s96 modification was allowed by deleting conditions 30 and 31, and development consent was granted for the 4 unit dual occupancy development subject to conditions.
Legal Topics
['dual Occupancy Development' 'flood Prone Land' 'restrictive Covenants and S 88 B Instruments' 'section 96 Modification' 'stormwater Drainage Maintenance' 'noise Impact' 'deferred Commencement Condition' 'access and Amenity']
['planning and Environment Law' 'development Consent' 'subdivision'] ['dual Occupancy Development' 'flood Prone Land' 'restrictive Covenants and S 88 B Instruments' 'section 96 Modification' 'stormwater Drainage Maintenance' 'noise Impact' 'deferred Commencement Condition' 'access and Amenity']

Case Brief

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Procedural Posture

Appeals Concerning Development Applications for Subdivision and Dual Occupancy Development / Judgment After Hearing and View

Legal Issues

  1. 1 ['Whether conditions 30 and 31 requiring registered restrictions as to user for the approved subdivision should be deleted on the s96 modification appeal.' 'Whether the dual occupancy development should be granted consent despite flooding, noise, access, amenity and orderly development concerns.' 'Whether a deferred commencement condition requiring registration of the subdivision before the second dual occupancy is commenced should be maintained.' 'Whether a condition requiring a positive covenant and restriction as to user for maintenance and performance of the infiltration/retention drainage system should be maintained.']

Ratio Decidendi

The s96 modification appeal was allowed because no extraordinary circumstances justified retaining conditions 30 and 31 requiring registered restrictive covenants; the flood-related building restrictions could be addressed by consent conditions and an advisory note. The dual occupancy appeal was allowed because the amended proposal satisfied the relevant s 79C considerations, with flood and noise impacts adequately managed by conditions, while the deferred commencement condition and drainage covenant condition were reasonably required for orderly development and ongoing maintenance of the drainage system.

Court Disposition

Both appeals allowed; the s96 modification was allowed by deleting conditions 30 and 31, and development consent was granted for the 4 unit dual occupancy development subject to conditions.

Orders

  • ['Appeal No. 11231 of 2006: The appeal is allowed.' 'Appeal No. 11231 of 2006: The s96 modification to DA /1881/2005 for a 2 lot subdivision is allowed by deletion of conditions 30 and 31.' 'Appeal No 11230 of 2006: The appeal is allowed.' 'Appeal No 11230 of 2006: Development consent is granted to DA 1126/2006 for...