Khodeir v Hornsby Shire Council

[2005] NSWLEC 448

Land and Environment Court

of New South Wales

CITATION:

Khodeir v Hornsby Shire Council [2005] NSWLEC 448

PARTIES:

Applicant:
Joe Khodeir

Respondent:
Hornsby Shire Council

FILE NUMBER(S):

10428 of 2005

CORAM:

Roseth SC

KEY ISSUES:

Development Application :- deferred commencement condition
drainage easement

LEGISLATION CITED:

Land and Environment Court Act 1979, s 40

DATES OF HEARING:

16/08/2005

 
DATE OF JUDGMENT: 

08/24/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr J Hogan-Doran, barrister instructed by Mr M Saliba of Coleman and Greig

Respondent:
Mr A Pickup, solicitor of Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

Roseth SC

24 August 2005

10428 of 2005 Joe Khodeir v Hornsby Shire Council

1 Senior Commissioner : These are consent orders in respect of a deferred commencement condition attached to Hornsby Shire Council’s Development Consent No 1671/02 dated 5 May 2004. The condition required the information on drainage easements to be provided to the council by 5 May 2005. These consent orders extend the time to 24 August 2006. Since the parties were in agreement and objectors are unaffected by the change, the Court agreed to the consent orders.

2 The council would have agreed to an extension of time without a need for litigation in this Court. The reason the applicant filed an appeal with the Court is that it wishes to pursue the granting of easements under s 40 of the Land and Environment Court Act 1979 . Since the appeal does not arise out of a genuine dispute, it was common ground that the applicant should pay the council’s costs. The parties requested that the Court make an order reserving costs.

3 An order reserving costs would result in a further cost hearing, the costs of which, in view of the likely amount in question, would not be justified. The Court therefore directed the parties to confer and advise the Court on or before 23 August 2005 whether they have reached agreement on a monetary sum.

4 On 23 August 2005 the parties advised that they agreed that the applicant pay the council’s costs in the sum of $5000. The Chief Judge of the Court has agreed to my making the cost order.

Consent orders

1. The appeal is upheld.
2. Development consent No 1671/02 issued by Hornsby Shire Council on 5 may 2004 is amended by the modification of Deferred Commencement Condition 1.1 to read as follows:
In order to provide for adequate drainage of the proposed subdivision, the property shall be connected to the natural watercourse downstream. The easement to drain water over all downstream lots between the subject property and the natural watercourse shall be registered with Land & Property Information NSW (formerly the Land Titles Office). A copy of the transfer document and plan shall be submitted to Council’s manager, subdivisions, before the consent becomes operative.

The information required by this condition shall be provided on or before 24 August 2006 .

3. The applicant shall pay the council’s costs in these proceedings in the agreed sum of $5,000 (five thousand dollars) within six weeks of the date of these orders.

____________________
Dr John Roseth
Senior Commissioner