Rainbowforce Pty Limited v Baulkham Hills Shire Council

Land and Environment Court

of New South Wales

CITATION: Rainbowforce Pty Limited v Baulkham Hills Shire Council [2008] NSWLEC 1404

PARTIES:
APPLICANT
Rainbowforce Pty Limited
RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S): 10617 of 2008

CORAM: Bly C

KEY ISSUES: Appeal :- Deferred commencement consent, residential flat buildings, deletion of conditions, consent orders.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 16/09/2008

EX TEMPORE JUDGMENT DATE: 16 September 2008

LEGAL REPRESENTATIVES:
APPLICANT
Ms P. Burns, solicitor
of Maddocks
RESPONDENT
Mr C. Winn, solicitor
of Baulkham Hills Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

16 September 2008

10617 of 2008 Rainbowforce Pty Limited v Baulkham Hills Shire Council
JUDGMENT

1 On 8 April 2008, the Baulkham Hills Shire Council granted a deferred commencement consent for the construction of three apartment buildings containing 299 dwellings at 19-21 Windsor Road and 28 Campbell Street, Northmead.

2 The applicant has now appealed pursuant to s 97 of the Environmental Planning and Assessment Act (1979) in relation to an application to modify deferred commencement conditions A(6) and conditions B of that consent.

3 Deferred condition A(6) deals with the creation of a stormwater drainage easement over property adjoining the site of the development consent. The applicant has now acquired adjoining land that has now been incorporated into the site such that stormwater drainage can be effected without the need for an easement, hence the council now agrees that deferred commencement condition A(6) can be deleted.

4 Deferred commencement condition B stipulates a two-year timeframe within which the deferred commencement requirements are to be met. Relevantly, deferred commencement conditions 1 and 4 deal with a right of carriageway and bridge to provide access to the site across adjoining land. The applicant is presently negotiating with the adjoining land owners. Because this process is continuing and further time for this purpose is needed, the council has agreed to this requirement being extended to three years.

5 A further amendment to the consent is also sought in relation to condition of consent 1 by including a reference to a revised stormwater drainage plan. This plan is also not opposed by the council.

6 There being no issue for the resolution of the court in this matter and accepting as I do the reasonableness of the proposed modifications, I have decided to uphold the appeal in terms of the consent orders that have been handed up and are retained on the court’s file as Exhibit 1 which will be retained.

___________________

CaseChat Overview and Summary

Rainbowforce Pty Limited appealed against the Baulkham Hills Shire Council's decision to grant a deferred commencement consent for the construction of three apartment buildings at Northmead. The appeal sought modifications to the consent's deferred commencement conditions and a condition of consent. The Court was required to determine whether the proposed modifications to the consent were reasonable.

The court had to consider whether the deletion of the stormwater drainage easement condition and the extension of the timeframe for meeting the deferred commencement requirements were reasonable. The applicant argued that the acquisition of adjoining land had eliminated the need for the easement, and the council agreed. The council also agreed to extend the timeframe for meeting the deferred commencement requirements, which related to a right of carriageway and bridge. Additionally, the applicant sought to include a reference to a revised stormwater drainage plan, which was not opposed by the council.

The court accepted the reasonableness of the proposed modifications. The court found that the deletion of the stormwater drainage easement condition was justified due to the acquisition of adjoining land. The court also found that extending the timeframe for meeting the deferred commencement requirements was reasonable, given the ongoing negotiations with adjoining land owners. Finally, the court found that including a reference to a revised stormwater drainage plan was also reasonable, as the council did not oppose it. The court upheld the appeal in terms of the consent orders that had been handed up and retained on the court's file.

The court ordered that the consent be modified to delete deferred commencement condition A(6), extend deferred commencement condition B to three years, and include a reference to a revised stormwater drainage plan in condition of consent 1.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Rainbowforce Pty Limited v Baulkham Hills Shire Council [2008] NSWLEC 1404
PARTIES:	APPLICANT Rainbowforce Pty Limited RESPONDENT Baulkham Hills Shire Council
FILE NUMBER(S):	10617 of 2008
CORAM:	Bly C
KEY ISSUES:	Appeal :- Deferred commencement consent, residential flat buildings, deletion of conditions, consent orders.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	16/09/2008
EX TEMPORE JUDGMENT DATE:	16 September 2008
LEGAL REPRESENTATIVES:	APPLICANT Ms P. Burns, solicitor of Maddocks RESPONDENT Mr C. Winn, solicitor of Baulkham Hills Shire Council