PASCOE v COUNCIL OF THE CITY OF WAGGA WAGGA [1995] NSWCA 360

PASCOE v COUNCIL OF THE CITY OF WAGGA WAGGA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and SHELLER JJA 28 February 1995, 11 April 1995

[1995] NSWCA 360

Local Government Act 1919; Environmental Planning and Assessment Act 1979; departure from development consent on conditions

The respondent gave a consent to the appellant for the erection of units on the condition that a site plan showing {he proposed drainage methods was submitted with the building application. The building approval was granted subject to compliance with certain requirements as to floor levels.

After the appellant lodged a strata plan approval application, it was discovered that floor levels were below the stipulated levels. The respondent agreed to accept the departure from the development consent subject to

* the lodgment of a bond to ensure completion of protection works by the appellant;

* the payment by the appellant for other works to be carried out by the respondent.

The development consent was amended in accordance with these terms.

In proceedings commenced by the appellant in the Land and Environment Court for a declaration that the amended consent was invalid and orders that the respondent was obliged to repay the sum, his Honour found that the respondent had acted reasonably and disposed of the proceedings on discretionary grounds.

The appellant submitted that his Honour erred in finding firstly that the amended consent was invalid and secondly that the respondent had acted reasonably.

Held:

As the respondent accepted that the amended consent was void, the development consent stood as at the time the appellant breached it. The respondent acted within power in accepting the departure on the condition that the appellant pay for remedial work. There was no basis upon which the appellant is entitled to recover the amount paid and his Honour was correct in dismissing the appeal.