Waverley Council v C M Hairis Architects [2002] NSWLEC 180

Waverley Council v C M Hairis Architects [2002] NSWLEC 180

DA 138/02 was not incompetent. It could properly be characterised as an application for development involving a change in use of two levels of the planned building and consequential structural works, and the EP&A Act did not confine the respondent to a s 96 modification application or a fresh application for the whole building. Section 80A(1)(b) and s 80A(5), together with cl 97 of the 2000 Regulation, permitted modification or surrender of an earlier consent independently of s 96. The Court was also not satisfied that the existing club use had been abandoned, because the evidence showed a maintained subjective intention to revert to or maintain the club use if DA 138/02 was unsuccessful.

Jurisdiction
Australia
Judgment Date
10 October 2002
Procedural Posture
Class 4 Proceedings in the Land and Environment Court of New South Wales / Judgment on the Applicant Council's Challenge to the Competency of DA 138/02 and Contention That Existing Use Rights Had Been Abandoned
Outcome
Application dismissed.
Legal Topics
['competency of Development Application' 'modification of Development Consent' 'successive Development Applications' 'section 80 a Conditions' 'section 96 Modification Applications' 'abandonment of Existing Use']
['planning and Environment Law' 'development Consent' 'existing Use Rights'] ['competency of Development Application' 'modification of Development Consent' 'successive Development Applications' 'section 80 a Conditions' 'section 96 Modification Applications' 'abandonment of Existing Use']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 4 Proceedings in the Land and Environment Court of New South Wales / Judgment on the Applicant Council's Challenge to the Competency of DA 138/02 and Contention That Existing Use Rights Had Been Abandoned

Legal Issues

  1. 1 ['Whether DA 138/02 was incompetent because an existing development consent could only be altered by an application under s 96 of the Environmental Planning and Assessment Act 1979 or by a fresh application for the whole development.' 'Whether s 80A(1)(b) and s 80A(5) of the Environmental Planning and Assessment Act 1979, with cl 97 of the Environmental Planning and Assessment Regulation 2000, permitted modification or surrender of an earlier consent independently of s 96.' 'Whether the existing club use had been abandoned after the premises ceased to be used as a club from about October 1999.']

Ratio Decidendi

DA 138/02 was not incompetent. It could properly be characterised as an application for development involving a change in use of two levels of the planned building and consequential structural works, and the EP&A Act did not confine the respondent to a s 96 modification application or a fresh application for the whole building. Section 80A(1)(b) and s 80A(5), together with cl 97 of the 2000 Regulation, permitted modification or surrender of an earlier consent independently of s 96. The Court was also not satisfied that the existing club use had been abandoned, because the evidence showed a maintained subjective intention to revert to or maintain the club use if DA 138/02 was unsuccessful.

Court Disposition

Application dismissed.

Orders

  • ['Application dismissed.' "Subject to any application made by Notice of Motion within 14 days, the applicant is to pay the respondent's costs." 'The exhibits may be returned.']