Starray Pty Ltd v Sydney City Council [2002] NSWLEC 48

Starray Pty Ltd v Sydney City Council [2002] NSWLEC 48

The second development application was not misconceived or incompetent because it could be characterised as an application for new development and a condition under s 80A(1)(b) could require modification of the first consent through an appropriate process. However, Starray's existing use rights for a public car park attached only to the ground level of the site, not to proposed basement levels in a building not yet erected. The proposed basement public car park was not within cl 48A(4), because no public car park already lawfully existed on those basement levels and no current consent existed for that land. It was not within cl 48A(2), because although it would directly service retail,...

Jurisdiction
Australia
Judgment Date
17 April 2002
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application / Re Hearing After S 56 a Appeal Set Aside the Senior Commissioner's Orders
Outcome
Appeal dismissed; development consent refused.
Legal Topics
['development Application for Public Car Park' 'permissibility Under Central Sydney Local Environmental Plan 1996 Cl 48 A' 'existing Use Rights' 'modification of Development Consent' 'conditions Requiring Modification of Consent']
['planning and Environmental Law' 'development Control'] ['development Application for Public Car Park' 'permissibility Under Central Sydney Local Environmental Plan 1996 Cl 48 A' 'existing Use Rights' 'modification of Development Consent' 'conditions Requiring Modification of Consent']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application / Re Hearing After S 56 a Appeal Set Aside the Senior Commissioner's Orders

Legal Issues

  1. 1 ['Whether the second development application was misconceived or incompetent because it sought in substance to modify the first development consent' 'Whether the proposed public car park was permissible by virtue of existing use rights' 'Whether the proposed development was exempt from the prohibition on public car parking under Central Sydney Local Environmental Plan 1996 cl 48A(2) or cl 48A(4)' 'If permissible, whether consent should be granted on the merits']

Ratio Decidendi

The second development application was not misconceived or incompetent because it could be characterised as an application for new development and a condition under s 80A(1)(b) could require modification of the first consent through an appropriate process. However, Starray's existing use rights for a public car park attached only to the ground level of the site, not to proposed basement levels in a building not yet erected. The proposed basement public car park was not within cl 48A(4), because no public car park already lawfully existed on those basement levels and no current consent existed for that land. It was not within cl 48A(2), because although it would directly service retail,...

Court Disposition

Appeal dismissed; development consent refused.

Orders

  • ['The appeal is dismissed.' 'Development application No D/2000/00395 in respect of a 45 space short term public car park at 589 - 593 George Street, Sydney, is determined by the refusal of consent.' 'The exhibits may be returned.']