Leichhardt Municipal Council v Datt [1989] NSWLEC 220

Land and Environment Court of New South Wales

CITATION : Leichhardt Municipal Council v Datt [1989] NSWLEC 220 APPLICANT Leichhardt Municipal Council PARTIES : RESPONDENT Chandra Datt FILE NUMBER(S) : 40254 of 1988 CORAM: Cripps J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 07/28/1989

LEGAL REPRESENTATIVES:

JUDGMENT:

His Honour: There are two matters presently before the Court, a class 4 matter and also a class 2 matter. In the class 4 matter the council seeks a mandatory order that a condition of development consent be complied with. The class 2 matter as filed was an appeal against the council's refusal to issue a 317A certificate with respect to a development in Glebe Point Road being the same development that the class 4 proceedings is concerned with. The class 2 proceedings became an appeal against the refusal of the council to modify a consent pursuant to s 102 of the Environmental Planning and Assessment Act. It is said that if what took place was unlawful because it was in breach of a condition of a consent (which is denied) the condition ought to

be modified so as to make lawful what it claimed, but not admitted, to be presently unlawful.

It is not entirely clear to me just how the class 2 matter became a class 1 matter and why the 317A appeal was not pursued in its entirety. However I take cognisance of the fact that I do not know all the circumstances surrounding the litigation and it is evident that there are other disputes concerning the building and the development application. Or at least there were until recently. I am taking the course I do because both the legal representatives in the case have asked me to adopt the course of hearing the class 1 and the class 2 matter together and to treat the class 2 matter as an appeal against the council's refusal to modify the consent pursuant to s 102 of the Environmental Planning and Assessment Act.