Robertson v Ryde City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Robertson and anor v Ryde City Council [2011] NSWLEC 1202

Hearing dates:

14 & 15 July 2011

Decision date:

15 July 2011

Jurisdiction:

Class 1

Before:

Moore SC

Decision:

(1)The appeal is upheld;

(2)Condition 14 of Development Consent 2000/242 is amended by the deletion of the words in the second line "both lots" and the substitution in lieu thereof of the words "Lot 1";

(3)Condition 15 of Development Consent 2000/242 is amended by the deletion of the words "both lots" in line 2 and in lieu there the words "Lot 1" are to be substituted;

(4)Pursuant to s 39(2) of the Land and Environment Court Act 1979, the respondent is directed to take such steps as are necessary to amend the records of the Land Titles Office to give effect to the amendments that have been made to conditions 14 and 15 of the conditions of Development Consent 2000/242; and

(5)The exhibits, other than Exhibits A, B, 1 and 6, are returned.

Catchwords:

Subdivision; flood mapped land; restrictive covenant on allotment with existing dwelling; inconsistence in application of Development Control Plan

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Conveyancing Act 1919

Cases Cited:

Fortunate Investments Pty Limited v North Sydney Council [2001] NSWLEC 70; (2000) 114 LGERA 1
Parrott v Kiama Council [2004] NSWLEC 77
Stockland Development v Manly Council [2004] NSWLEC 472
Newbury District Council v Secretary of State for the Environment [1981] AC 578

Category:

Principal judgment

Parties:

P & Z Robertson (Applicants)

Ryde City Council (Respondent)

Representation:

Applicants in person

Mr M Cottom
Kells the Lawyers (Respondent)

File Number(s):

10344 of 2011

EXTEMPORE Judgment

1. In January 2008, Bewsher Consulting Pty Limited completed the preparation of a flood study known as the Eastwood and Terrys Creek Floodplain Draft Flood Risk Study and Plan (the Flood Study). It is the common position, as I understand it in these proceedings, that that plan has subsequently been adopted by Ryde City Council (the council).

1. The flood study shows, amongst other things, significant flood affectation of a number of properties that are located on the southern side of Vimiera Road Eastwood, including a property known as 26B Vimiera Road and a property owned by the applicants that had, prior to its subdivision, been known as 32 Vimiera Road.

1. The applicants applied for approval to subdivide their property and to erect, at the rear of the subdivided property, a new dwelling (in which they now reside). That subdivision has taken effect and has resulted in two allotments that have been created - Lots 1 and 2 in a deposited plan registered with the Land Titles Office. A number of conditions of registration of the plan of subdivision were contained in the council's conditions of consent. These comprised Conditions 14, 15 and 16, which were originally imposed in August 2001 and which were, with respect to Condition 15, amended by a modification application in August 2003.