Meriton Apartments Pty Limited v City of Canada Bay Council

[2003] NSWLEC 92

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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.