Rogers v Inner West Council [2018] NSWLEC 1305

Rogers v Inner West Council [2018] NSWLEC 1305

Condition 64 is not appropriate as it unreasonably fetters the discretion of Council in administering the resident parking scheme policy, is not supported by a relevant planning purpose, and in the circumstances of the development, its imposition is not justified either on merit or principle. The modification application to remove the condition is granted.

Parties
Applicant: Tyler Rogers; Respondent: Inner West Council
Jurisdiction
Australia
Judgment Date
26 June 2018
Procedural Posture
Modification Application (class 1, Land and Environment Court) / Determination of S 4.55(8) Application to Modify Consent
Outcome
Modification application granted; condition 64 deleted from consent.
Legal Topics
Modification of Development Consent, Planning Conditions, Resident Parking Schemes, Council Discretion, Development Control Plans, Environmental Planning
Planning Law Administrative Law Modification of Development Consent Planning Conditions Resident Parking Schemes Council Discretion Development Control Plans Environmental Planning

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Parties

Tyler Rogers

Applicant

Inner West Council

Respondent

Procedural Posture

Modification Application (class 1, Land and Environment Court) / Determination of S 4.55(8) Application to Modify Consent

Legal Issues

  1. 1 Whether condition 64 of the development consent, precluding eligibility for resident parking scheme permits, should be deleted on principle or merit
  2. 2 Whether the condition serves a planning purpose and is lawful
  3. 3 Whether the condition is an unreasonable fetter on Council's discretionary power

Ratio Decidendi

Condition 64 is not appropriate as it unreasonably fetters the discretion of Council in administering the resident parking scheme policy, is not supported by a relevant planning purpose, and in the circumstances of the development, its imposition is not justified either on merit or principle. The modification application to remove the condition is granted.

Court Disposition

Modification application granted; condition 64 deleted from consent.

Orders

  • The application to modify the development consent granted in proceedings 121723 of 2017 by deleting condition 64 is granted.
  • The development consent is now subject to the consolidated and modified conditions at Annexure A.