Ramsay v Wingecarribee Shire Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ramsay & Anor v Wingecarribee Shire Council [2011] NSWLEC 1349

Hearing dates:

27 October 2011

Decision date:

28 October 2011

Jurisdiction:

Class 1

Before:

Dixon C

Decision:

(1)The appeal is upheld.

(2)Development consent is granted to Development Application LUA 11/0142 for the subdivision of Lot 1 DP 785111, 416 Berrima Road, Moss Vale into two allotments and the construction of a 22m wide carriage way and the installation of pollution trap and a bio-retention system to treat post development water run off subject to the conditions in Annexure "A".

(3)The exhibits are returned.

Catchwords:

Development application - challenge to conditions of a development consent for subdivision of land - whether the conditions imposed relate to a matter referred to in s79C (1) of the EPA Act and whether such matter is relevant to the particular development for which development consent has been given, s 80A (1)(a) of the EPA Act

Legislation Cited:

Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Wingecarribee Local Environmental Plan 2010
Moss Vale Enterprise Corridor Development Control Plan

Cases Cited:

Cavasinni v Fairfield City Council [2010] NSWLEC 65
Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53; 158 LGERA 429
Mirvac Projects v Sydney City Council [2003] 131 LGERA 363
Newbury District Council v Secretary of State for the Environment [1981] AC 578,
Planning Commission (WA) v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
MacDonald v Mosman Municipal Council [1999] NSWLEC 215
Carr v Goulburn City Council (Cripps J 21 June 1983, unreported)

Category:

Principal judgment

Parties:

Mr P Ramsay (First Applicant)
Mr M Siddle (Second Applicant)

Wingecarribee Shire Council (Respondent)

Representation:

Mr A Pickles Barrister (Applicant)
Minter Ellison Lawyers

Mr B Bilinsky Solicitor (Respondent)
Bilinsky & Co

File Number(s):

10750 of 2011

Ex tempore Judgment

This determination was given extemporaneously and has been edited prior to publication .

Introduction

1. This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979, (Act) against a development consent (LUA 11/10142) issued by the respondent, Wingecarribbee Council for the subdivision of land at 416 Berrima Road, Moss Vale (the land).

1. The consent approves the subdivision of the land into two allotments and the construction of a private access road from Berrima Road through Lot 100 connecting to Lot 101. Lot 101 will benefit from a right of carriageway over Lot 100.

1. The applicant seeks to retain the consent for the subdivision but wants conditions 9, 11,14 and 21 to be deleted. It contends that those conditions cannot be imposed under s 80A(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act), because they do not relate to the impacts of the development and/or are unreasonable. The council argues to the contrary.

1. The appeal was heard at Picton Courthouse and expert town planning evidence was received from Mr Malloy for the council and Ms Pinkerton for the applicant. Their joint report is Exhibit C.

1. The conditions in…