Meriton Apartments Pty Limited v City of Canada Bay Council

Case [2003] NSWLEC 92

>

Land and Environment Court


of New South Wales


CITATION: Meriton Apartments Pty Limited v City of Canada Bay Council [2003] NSWLEC 92
PARTIES:

APPLICANT
Meriton Apartments Pty Limited

RESPONDENT
City of Canada Bay Council
FILE NUMBER(S): 10576 of 2002
CORAM: Talbot J
KEY ISSUES: Development Consent :- condition requiring restriction as to user approved
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING: 18/02/2003
EX TEMPORE
JUDGMENT DATE :
02/18/2003
LEGAL REPRESENTATIVES:


APPLICANT
Mr S Simington (Solicitor)
SOLICITORS
Abbott Tout

RESPONDENT
Mr R Graham (Solicitor)
SOLICITORS
Phillips Fox


JUDGMENT:

IN THE LAND AND


ENVIRONMENT COURT


OF NEW SOUTH WALES

                          10576 of 2002

                          Talbot J

                          18 February 2003
Meriton Apartments Pty Limited
                                  Applicant
      v
City of Canada Bay Council
                                  Respondent
Judgment

      Introduction

1 HIS HONOUR: A s 88B instrument is needed in this case. I should place this on the record because there is a condition of consent to the effect that there shall never be development on the area of the rock outcrop. Not only will there be the impediment of the condition, which would operate to prevent such development during the life of the development consent itself, there will also be an impediment on the title to the land which perpetuates the constraint. If any subsequent owner lodges a development application it will not be just a question of overcoming the existing consent condition but the circumstances will require the restriction as to user to be changed. In my view this is an appropriate case where a restriction as to user can be recognised as a means of reinforcing a condition of a development consent in perpetuity. That being the objective.

2 Notwithstanding the Court’s policy, if that is what it is, in generally not favouring the imposition of a restriction as to user merely as a means of reinforcing a condition of development consent, I specifically approve the restriction in these circumstances.

3 I make order No.1 in the form of consent orders dated 17 February 2003 and I make order No. 2 in the following form:-

          DA205/02 for the construction of two residential apartment buildings is determined by the grant of consent subject to the conditions, which I will annex to the orders and comprised in exhibit A.
Details
AGLC
Meriton Apartments Pty Limited v City of Canada Bay Council [2003] NSWLEC 92
Case
[2003] NSWLEC 92
Decision Date

CaseChat Overview and Summary

Meriton Apartments Pty Limited sought approval from the City of Canada Bay Council to construct two residential apartment buildings on a particular plot of land. The City of Canada Bay Council approved the development but included a condition that no development should occur on the area of the rock outcrop. Meriton Apartments Pty Limited applied to the Land and Environment Court of New South Wales for an order that the condition requiring the restriction on development on the rock outcrop was not necessary. The primary legal issue was whether the condition imposed by the City of Canada Bay Council was necessary and appropriate. The Court had to consider whether the condition was a valid means of reinforcing the development consent and whether it would serve a legitimate planning purpose.

The Court examined the objectives of the development consent and the condition imposed by the City of Canada Bay Council. The Court noted that the condition would prevent development on the rock outcrop during the life of the development consent and would also impose a constraint on the title to the land, affecting any future owner of the property. The Court acknowledged that its general policy was not to favour the imposition of a restriction as to user merely to reinforce a condition of development consent. However, in this case, the Court considered that the condition was appropriate as it reinforced the development consent in perpetuity, which was the objective of the condition. The Court also noted that the restriction as to user would serve a legitimate planning purpose by preventing development on the rock outcrop.

The Court approved the condition imposed by the City of Canada Bay Council and granted the development consent subject to the conditions. The Court made an order that DA205/02 for the construction of two residential apartment buildings was determined by the grant of consent subject to the conditions, which were annexed to the orders and comprised in exhibit A. The Court's decision reinforced the importance of considering the objectives of development consent and the conditions imposed by local councils in planning and development matters.

Orders

Orders of the court

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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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