Rogers v Blacktown City Council

[2008] NSWLEC 1502

Land and Environment Court

of New South Wales

CITATION:	Rogers v Blacktown City Council [2008] NSWLEC 1502
PARTIES:	APPLICANT Leslie David Rogers RESPONDENT Blacktown City Council
FILE NUMBER(S):	10736 of 2008
CORAM:	Brown C
KEY ISSUES:	Development Application :- imposition of deferred commencement condition for Restriction As To User for tree protection
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Blacktown Local Environmental Plan 1998
DATES OF HEARING:	2811/08
EX TEMPORE JUDGMENT DATE:	28 November 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr C Maley, solicitor SOLICITORS Maclarens Lawyers RESPONDENT Mr S Simington, solicitor SOLICITORS Lindsay Taylor Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

28 November 2008

10736 of 2008 Leslie David Rogers v Blacktown City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against conditions imposed by Blacktown City Council on the approval of Development Application DA 07/3026 on 21 April 2008 for the subdivision of land at 164 Meurants Lane, Glenwood into 7 Torrens title residential lots, 1 residual lot, a public road and a temporary cul-de-sac head.

2 The proceedings were originally to be heard as a Court hearing however the parties agreed to an On Site Hearing. The judgement reflects the relevant sections of the Statement of Facts and Contentions and the reasons given on-site for the determination of the appeal.

3 The Statement of Facts and Contentions identified deferred commencement condition 1 and operational conditions 26 and 81 as being in dispute however the council did not press the exclusion of conditions 28 and 81 at the hearing.

The condition in dispute

4 Deferred commencement condition 1 states:

Deferred Commencement Matter(s)
1. This consent is not to operate until a Building Curtilage Plan is submitted to Council for its separate approval. This plan is to identify a Building Curtilage, limiting the extent of the future Developable Area over proposed Lots 154, 155, 156 and 157 to preserve as many of the existing trees as possible.

Accompanying the Building Curtilage Plan, a proposed Restriction As To User pursuant to Section 88B of the Conveyancing Act 1919 over proposed Lots 154, 155, 156 and 157 limiting the development potential of the nominated lots to preserve as many of the existing trees as possible is to be submitted to Council for its endorsement, at the same time acknowledging the need to facilitate services/driveways to the future building envelopes.

All matters listed above must be completed within the following nominated period from the date of this consent or this consent shall lapse:

NOMINATED PERIOD: 2 years.

The evidence

5 Mr Glenn Apps, for the council stated that it is necessary to impose a Restriction As To User on the title of the relevant lots to protect and retain the existing trees. Mr Andy Ludvik, for the applicant states that the tree preservation and other planning provisions in Blacktown Local Environmental Plan 1998 (LEP 1988) provide adequate statutory mechanisms to effectively protect the trees on the land and that a Restriction As To User is unnecessary and does not provide any additional effective statutory protection for the trees.

6 There was agreement between the arborists, Mr David Ford, for the council and Mr Mark Bury, for the applicant on the trees to be retained and the trees to be removed on Lots 154 to 157.

Findings

7 On the question of whether deferred commencement condition 1 should be retained; I agree with the conclusions of Mr Ludvik. As I understand, the council did not press the need for a Building Curtilage Plan and I am satisfied that the need for a Restriction As To User to protect the retained trees is an unnecessary burden on the applicant given the need for a separate development application for the erection of a dwelling on the newly created lots and the tree preservation provisions of LEP 1988.

8 The position adopted by the council would have greater force if the area available for the erection of a dwelling were limited on the lots by way of environmental constraints or size. This, however is not the case with the proposed subdivision as the lots are each 890 sq m and significantly larger than the minimum area of 450 sq m required under LEP 1988. The lots are also unconstrained by any environmental features.

9 The findings also support the general proposition that the Conveyancing Act 1919 should not be used to enforce planning provisions when adequate provisions are available within existing planning legislation (for example see Carr v Goulbourn City Council (LEC) Cripps J, Appeal No 20518 of 1982, 21 June 1983, unreported).

10 There was also agreement between the parties to the inclusion of a condition allowing the removal of the trees identified by Mr Ford and Mr Bury as being suitable for removal.

Orders

11 The orders of the Court are:

1. The appeal is upheld.
2. Deferred commencement condition 1 on the approval of Development Application DA 07/3026 on 21 April 2008 for the subdivision of land at 164 Meurants Lane, Glenwood is deleted and development consent is granted subject to the conditions in Annexure A.
3. The exhibits are returned.
___________
G T Brown
Commissioner of the Court