Land and Environment Court
New South Wales
Medium Neutral Citation: Rahman v Campbelltown City Council [2024] NSWLEC 1453 Hearing dates: 12 and 13 June 2024 Date of orders: 31 July 2024 Decision date: 31 July 2024 Jurisdiction: Class 1 Before: Peatman AC Decision: The Court orders that:
(1) The appeal is upheld.
(2) The Respondent delete Conditions 29 and 41A of Exhibit 2 (Draft Conditions of Consent) and file these Conditions of Consent as Annexure A within 7 days of these orders.
Catchwords: DEVELOPMENT CONSENT – conditions – developer contribution or levy – driveway construction
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.12, 4.15, 4.17, 7.11, 7.12, 7.13, Pt 7
Land and Environment Court Act 1979, s 17
Campbelltown Local Environmental Plan 2015, Pt 2, cll 2.1, 2.2, 2.3, 4.3, 4.4, 7.10
Environmental Planning and Assessment Regulation 2021, s 23
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Housing) 2021, s 7, Ch 3, Pt 3, ss 67, 68, Sch 10
State Environmental Planning Policy (Resilience and Hazards) 2021
Standard Instrument (Local Environmental Plans) Amendment (Miscellaneous) Order 2021
Cases Cited: ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18
Anglican Church Property Trust Diocese of Sydney v Camden Council [2021] NSWLEC 118
Calleja v Botany Bay City Council (2005) 142 LGERA 104; [2005] NSWCA 337
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155
Fitch v Shoalhaven City Council (1987) 67 LGRA 165
Intrapac Skennars Head Pty Ltd v Ballina Shire Council (2021) 249 LGERA 400; [2021] NSWLEC 83
Rose Consulting Group v Baulkham Hills Shire Council (2003) 58 NSWLR 159; [2003] NSWCA 266
SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Texts Cited: Campbelltown Community Participation Plan 2023
Campbelltown Local infrastructure Contributions Plan 2018
Campbelltown Local Infrastructure Contributions Plan 2018 (Amendment 1)
Campbelltown (Sustainable City) Development Control Plan 2015
Category: Principal judgment Parties: Mohammed Rahman (Applicant)
Campbelltown City Council (Respondent)Representation: Counsel:
Solicitors:
P Jayne (Solicitor) (Applicant)
H Irish (Respondent)
SWS Lawyers Pty Ltd (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2023/274646 Publication restriction: No
Judgment
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COMMISSIONER: On 12 July 2023, the Applicant lodged Development Application No. 2366/2023/DA-CL (DA) with Campbelltown City Council (Council) seeking consent for the demolition of existing structures and construction of a co-living housing development comprising two two-storey buildings containing a total of 15 private rooms (12 single rooms and 3 double rooms) accommodating a total of 18 residents, associated landscaping and at-grade parking for 3 cars, 3 motorcycles and 4 bicycles for the property known as 1 Durham Street, Minto, being the whole of the land in Lot 17 Deposited Plan 597326 (Site):
Proposed Building 1 is located at the front of the site and proposed Building 2 is located at the rear,…
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- Case
- [2024] NSWLEC 1453
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the conditions imposed by the Council were in accordance with the planning legislation and whether they were reasonably necessary for the protection of the public interest. The court had to determine if the conditions were appropriate and justified under the relevant planning laws.
The court found that Conditions 29 and 41A went beyond what was necessary for the protection of the public interest. The conditions imposed obligations that were not required by the planning scheme and were not reasonably necessary for the development. The court held that these conditions were not in accordance with the statutory requirements and therefore were invalid. As a result, the court upheld Mr. Rahman's appeal and directed the Council to remove these conditions from the Draft Conditions of Consent and to file the revised conditions within seven days of the court's order.
Orders
Orders of the court
The Court orders that:
(1) The appeal is upheld.
(2) The Respondent delete Conditions 29 and 41A of Exhibit 2 (Draft Conditions of Consent) and file these Conditions of Consent as Annexure A within 7 days of these orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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