NSW Caselaw
Reported Decision: 164 LGERA 161
New South Wales Court of Appeal
CITATION: Broker Pty Ltd v Shoalhaven City Council [2008] NSWCA 311
HEARING DATE(S): 18 September 2008
JUDGMENT DATE: 24 November 2008
JUDGMENT OF: Campbell JA at 1; Young CJ in Eq at 93; Handley AJA at 127
DECISION: Appeal dismissed with costs
CATCHWORDS: ENVIRONMENT LAW – legislation generally – contribution towards provision or improvement of amenities or services required under s 94 Environmental Planning and Assessment Act 1979 – appellant obtained development consent to effect subdivisions of land subject to condition that it pay contributions towards cost of infrastructure – appellant complied with condition – council adopted new Contributions Plan purporting to require additional contribution when in the future the owner of a lot in the subdivision sought consent or complying development certificate in respect of the erection of a dwelling on the lot – validity of purported condition – scope of validity of contributions plans – trigger for operation of s 94 Environmental Planning and Assessment Act – "development" for which "development consent" is sought – extended definition of "development" in s 4 of Act – whether fact that Council has made a prediction for s 94 purposes as to the likely effect of proposed development on requirement or demand for public amenities or services precludes it from making another prediction for s 94 purposes when development consent sought in respect of further development of land – whether provision of Contributions Plan that purported to oblige accredited certifier to impose a condition requiring payment of contributions upon complying development certificate invalid – construction of s 94EC(1)(a) Environmental Planning and Assessment Act – whether granting of subdivision consents impliedly grants consent to lots in subdivision being put to residential use – significance of unavailability of rights of appeal in respect of condition imposed upon complying development certificate – where right of appeal would be available in circumstances where condition imposed on development consent – s 85A(10) and s 94B(3) Environmental Planning and Assessment Act
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