Mauro Poletti v Inner West Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mauro Poletti v Inner West Council [2017] NSWLEC 1325

Hearing dates:

24 May 2017

Date of orders:

27 June 2017

Decision date:

27 June 2017

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

 

(1) The appeal is upheld.

 

(2) The conditions of consent for Development Application D/2016/434), issued by the Respondent on 14 February, for the internal alterations and additions to a class 4 dwelling on first floor, strip out of retail premises for new salt float tank on ground and lower ground floors (hours of operation Monday to Sunday 8am to 10pm), and other alterations to existing car park on lower ground floor at 337 Darling St, Balmain, are amended as follows:
a. Delete condition 11(a).

 

(3) Development consent is granted DA D/2016/434), subject to the revised conditions of consent annexed hereto as Annexure ‘A’.

 (4) The exhibits are returned, with the exception of Exhibits 1, A and B.

Catchwords:

Development Application: deferred commencement condition: whether an easement exists prior to registration: first floor balustrade in a heritage zone.

Legislation Cited:

Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Inner West Local Environment Plan 1991
Land and Environment Court Act 1979
Real Property Act 1900

Cases Cited:

Fortunate Investments Pty Ltd v North Sydney Council (2001) 114 LGERA 1; [2001] NSWLEC 70
Zahrooni v Parramatta City Council [2017] NSWLEC 1170

Texts Cited:

Butt, P. (2010) Land Law (6th Edition), Thomson Reuters.
Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Mauro Poletti (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:

 

M Seymour (Applicant)
M. Bonanno (Respondent)

   

Solicitors:

  Dentons (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2016/364506

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: This is an appeal by Mr Mauro Poletti (the Applicant) against the imposition certain conditions consent issued by Inner West Council (the Respondent) on 14 February 2017 in granting consent to Development Application D/2016/434 (the Application) for internal alterations and additions to a dwelling at 337 Darling Street, Balmain (the Subject Site).

2. The appeal was initiated under s.97(1) of the EPA Act against the deemed refusal of the Application. Following lodgement of the appeal, Council granted consent to the proposed development, with conditions.

3. The appeal was subsequently amended, and now seeks to modify two conditions of consent:

1. Condition 1, a deferred commencement condition, which requires the Applicant to secure an easement for drainage in favour of the Subject Site over an adjoining lot, identified as 341 Darling Stree,t to provide a gravity drainage line connecting the Subject Site to the curb and gutter in Short Street. The condition also requires the Applicant register of easement with the NSW Land and Property Information Service (NSW LPI) prior to the consent becoming operational. The appeal seeks deletion of this condition and its replacement by an operational condition requiring registration of the easement prior to an occupation certificate for the development being issued.

2. Condition 11a, which requires that a proposed first-floor balcony balustrade be made of vertical…