Nettle v Leichhardt Council

[2006] NSWLEC 751

Land and Environment Court

of New South Wales

CITATION:	Nettle v Leichhardt Council [2006] NSWLEC 751
PARTIES:	APPLICANT Ross Nettle RESPONDENT Leichhardt Council
FILE NUMBER(S):	10537 of 2001
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Modification
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Falcomata v Ku-ring-gai Council (No 2) [2005] 143 LGERA 346, NSWLEC 459; Newbury District Council v Secretary of State for the Environment [1981] AC 578
DATES OF HEARING:	17 November 2006
EX TEMPORE JUDGMENT DATE:	11/17/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr B Goldsmith, agent RESPONDENT Ms J Walsh, solicitor Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

17 November 2006

01/10533 Nettle v Leichhardt Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the modification of an existing development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1. COMMISSIONER: This is an appeal pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (the Act) concerning Modification Application 2005/212 to modify Development Consent 2000/1008.

2. The site is located at 40 Thames Street, Balmain where it is proposed to demolish an existing dwelling (which is fact orientated to the north-east towards Mort Bay and has an effective frontage to Mort Street rather than to Thames Street) and replace it with two dwellings having the same orientation but with the vehicle access to the new dwellings being via Mort Street rather than to Thames Street as is presently the case.

3. The modification application now comes to me as proposed consent orders.

4. I inspected the site this morning in company with the representative of the applicant and the legal representative of the council. I have carefully read the various written objections, many of which relate, in substance, to the original proposal rather than to the modifications that are now proposed to it.

5. One matter that was of some importance contained in the residents’ objections was how the resulting development would be perceived if the originally proposed open grill style door to the garaging space had been carried through into the final conditions of consent as the void behind that space would have been obvious, thus rendering the scale of the development more likely to be viewed as one of three or four storeys than a more development in keeping with its surroundings than would be the perception if a solid panelled door were across the entrance to the garage space.

6. As now agreed between the parties, the conditions of consent have been amended to require a solid panelled door were across the entrance to the garage.

7. During the course of the site inspection, I raised two concerns with respect to conditions.

8. The first was the proposed by the council to impose a tree preservation bond contrary to the planning principles enunciated in Falcomata v Ku-ring-gai Council (No 2) [2005] 143 LGERA 346, NSWLEC 459 in which I held that:

• such a bond was impermissible as a consequence of the provisions of s 80A(6) of the Act; and
• even if it were not impermissible for statutory reasons, it failed the tests in Newbury District Council v Secretary of State for the Environment [1981] AC 578.

9. As a consequence of that discussion, the council no longer pressed that condition.

10. I also raised a concern that I had with respect to a proposed condition that would have created one element of a proposed instrument under s 88E of the Conveyancing Act 1919 importing a civil liability indemnity for the council and for neighbouring properties with respect to flooding and other possible failures of stormwater disposal systems.

11. I questioned whether or not such an instrument could be required or at least that element of such an instrument could be required consistent with the provisions of the tests in Newbury as I was not satisfied that it was for a planning purpose.

12. The other elements, relating to the drainage systems and the instrument proposed with respect to them, are clearly for proper planning purposes.

13. The paragraph which had concerned me is no longer pressed by the council and, as a consequence, I am satisfied that the conditions are appropriate to be made as are consent orders to give effect of the agreement between the parties is now before the Court in exhibit 1.

14. I therefore propose to make the following orders by consent:

1. The appeal is upheld;
2. Modification Application 2005/212 is determined by the granting of consent subject to the modifications to the conditions which will be incorporated in the consolidated conditions of consent which will form annexure A to the orders of the Court; and
3. The exhibits, other than exhibits 1A and B, may be returned.

Commissioner of the Court