Ku-ring-gai Council v Buyozo Pty Ltd

(2021) 248 LGERA 300; [2021] NSWCA 177

NSW Court of Appeal

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Interrogate

Catchwords

1. Environment and Planning
2. › Development consent
3. › Modification of consent
4. › Condition requiring payment of monetary contribution
5. › Power to reduce contribution after payment
6. › Whether condition capable of modification after compliance
7. › Environmental Planning and Assessment Act 1979 (NSW), ss 4.55, 4.56, 7.11
1. Environment and Planning
2. › Development consent
3. › Modification of consent
4. › Preconditions to exercise of power
5. › Whether modification must effect change to development
6. › Substantially the same development
7. › Environmental Planning and Assessment Act 1979 (NSW), ss 4.55(1A), 4.55(2), 4.56(1)
1. Environment and Planning
2. › Development consent
3. › Contributions
4. › Calculation of monetary contribution
5. › Gross floor area
6. › Construction of definition
7. › Whether corridors between storage units excluded as access to loading areas
8. › Ku-ring-gai Local Environmental Plan 2015
1. Environment and Planning
2. › Development consent
3. › Modification of consent
4. › Utility of modification
5. › Whether modification would produce foreseeable consequence for parties
6. › No legal entitlement to recover overpayment
7. › Environmental Planning and Assessment Act 1979 (NSW), ss 7.11(6), 4.56(1C)

Quick Take

Once a monetary contribution condition has been complied with, the condition cannot be modified under s 4.55(1A), (2) or s 4.56(1) to reduce the amount; the developer's remedies lie in appealing the original condition or seeking judicial review.