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MacDonald v Mosman Municipal Council

MacDonald v Mosman Municipal Council

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Case Copied 21 September 1999 11 min read

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Land and Environment Court

of New South Wales

CITATION:

MacDonald v Mosman Municipal Council [1999] NSWLEC 215

PARTIES

APPLICANT:
R MacDonald

RESPONDENT:
Mosman Municipal Council

NUMBER:

10166 of 1998

CORAM:

Lloyd J

KEY ISSUES:

Development Consent :- condition of - resgistration of restrictions as to user

LEGISLATION CITED:

DATES OF HEARING:

08/30/1999

DATE OF JUDGMENT DELIVERY:

09/21/1999

LEGAL REPRESENTATIVES:

APPLICANT:
T S Hale (Barrister)
SOLICITORS:
Pike Pike & Fenwick
RESPONDENT:
P C Tomasetti (Barrister)
SOLICITORS:
Hill Thomson & Sullivan

JUDGMENT:

IN THE LAND AND Matter No: 10166 of 1999

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 21/09/99

MacDonald

Applicant

Mosman Municipal Council

Respondent

JUDGMENT

HIS HONOUR:

1. This is an appeal under s 97 of the Environmental Planning & Assessment Act 1979 (“the Act”) against the imposition of a condition of a development consent granted by the respondent, Mosman Municipal Council (“the Council”) for entrance stairs to a house at 6 Coronation Avenue, Mosman. Following the filing of the application in the Court, the applicants filed a notice of motion for the determination of a preliminary question of law by a Judge, or alternatively, for the whole of the appeal to be heard by a Judge. The question of law sought to be raised is whether the imposition of the disputed condition is lawful; that is to say, whether the disputed condition is invalid or ultra vires . On 12 July 1999 Sheahan J made an order that the whole of the appeal be heard by a Judge.

2. The disputed condition is as follows:

1.2 An Instrument under Section 88B of the Conveyancing Act generally restricting any further development south of the proposed access steps and landing is to be registered. The name of the person empowered to vary or modify this restriction is Mosman Municipal Council. The applicant must meet Council’s costs in the preparation of this instrument.

3. On 5 August 1997 the Council granted development consent for a dwelling house at 6 Coronation Avenue. On 16 October 1997 the Council granted building approval for the dwelling house. The plans which are the subject of the development consent showed an elevated walkway from Coronation Avenue to the upper floor of the proposed dwelling house as being deleted. The plans which are the subject of the building approval likewise show the same elevated walkway with the notation “ deleted ” across the walkway. The development consent had been granted after several meetings between the adjoining neighbours (the owners of Nos 4 and 8 Coronation Avenue) and the Council’s staff which resulted in the neighbours’ acceptance of the plans but with the deletion of the elevated entry structure. It seems that the construction of the dwelling house involved a number of departures from the standards required by the Council’s residential development control plan, which the neighbours were prepared to accept provided the elevated walkway was deleted.

4. After the applicant commenced construction of the dwelling house he made a further development application for an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWLEC 215
Decision Date: 09/21/1999

CaseChat Overview and Summary

In MacDonald v Mosman Municipal Council, the applicant sought review of a decision by the Mosman Municipal Council to impose a condition on a development consent for entrance stairs to a house at 6 Coronation Avenue, Mosman. The primary issue before the Land and Environment Court was whether the condition requiring the registration of restrictions as to user under the Conveyancing Act was lawful or ultra vires. The applicant argued that the condition was beyond the power of the Council, while the Council argued that the condition was necessary to uphold the integrity of the agreement reached with the neighbours.

The Court examined relevant precedents to determine the appropriateness of imposing conditions that require registered restrictions as to user. The Court found that it had not been favourably disposed towards such conditions in the past, and that there was no justification for imposing such a condition in this case. The Court held that the power of the Council did not need to be reinforced in the manner contended for by the Council and that the condition was neither necessary nor generally appropriate. The Court ultimately decided to delete the condition on the merits and did not need to determine its validity.

The formal orders of the Court were to allow the appeal, grant development consent to the applicant, delete the disputed condition, and return the exhibits.

Orders