Spring v North Sydney Council - [2018] NSWSC 463

Supreme Court

New South Wales

Medium Neutral Citation: Spring v North Sydney Council [2018] NSWSC 463
Hearing dates: 26 March; 4, 6 April 2018
Date of orders: 06 April 2018
Decision date: 06 April 2018
Jurisdiction: Equity
Before: Parker J
Decision:
Plaintiff’s application for adjournment refused.
Order made for separate and later determination of quantum of any compensation required for grant of compulsory easement sought by plaintiff.

Catchwords:
PRACTICE AND PROCEDURE – application for adjournment – where adjournment is sought so that a development application can be assessed by a new independent planning panel – whether the planning panel obviates the need for a s 88K application – the new planning system is “not an appropriate reason” to adjourn the plaintiff’s s 88K application – the absence of prejudice to the defendant is not enough to allow the plaintiff’s application to proceed

DEVELOPMENT APPLICATION – Environmental Planning and Assessment Act 1979 (NSW), s 9.1 – Environmental Planning and Assessment Regulation 2000 (NSW), cl 49 – direction by Minister for Planning – Local Planning Panels Direction - Development Applications, Sch 1, cl 1 – discussion of whether development application is within the scope of cl 1 – discussion of whether Council is a “landowner” whose written consent is required for the plaintiff to lodge the development application
EASEMENTS – Conveyancing Act 1919 (NSW), s 88K – discussion of grant of rights in an easement – discussion of whether a servient owner can owe a duty to the dominant owner to consent to the lodgement of a development application
Legislation Cited: Conveyancing Act 1919 (NSW), s 88K
Environmental Planning and Assessment Act 1979 (NSW), s 9.1
Environmental Planning and Assessment Regulation 2000 (NSW), cl 49
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Kladis v Lowe [2016] NSWSC 1834
Owners Corporation – Strata Plan No. 8450 v Owners Corporation – Strata Plan No. 54547 [2002] NSWSC 780
Category: Procedural and other rulings
Parties: Caroline Spring (Plaintiff)
North Sydney Council (Defendant)
Representation:
Counsel:
RM Higgins (Plaintiff)
M Condon SC/R Mansted (Defendant)
Solicitors:
Sparke Helmore (Defendant)

File Number(s): 2016/371758
Publication restriction: Nil

Judgment – EX TEMPORE

Revised and issued 1 May 2018

The trial of these proceedings is fixed for a three-day hearing commencing on 7 May. This judgment relates to an application by the plaintiff (Mrs Spring) for an adjournment, and a cross-application by the defendant to rely upon expert valuation evidence which has recently been served.
Mrs Spring is the owner of land at Cremorne in North Sydney, where she lives with her husband. Mrs Spring’s land adjoins a small, irregular area of vacant land owned by the defendant Council. The Springs wish to redevelop the property by renovating and extending the house. Part of the proposed redevelopment would involve the construction of a paved terrace and landscaping works extending onto the Council land. The Springs’ perception is that this would enable them to comply with planning requirements as to the area of landscaping to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Spring v North Sydney Council

Details

AGLC: Spring v North Sydney Council [2018] NSWSC 463
Case: [2018] NSWSC 463
Decision Date: 06 April 2018

CaseChat Overview and Summary

In the matter of Spring v North Sydney Council, the plaintiff, Mr Spring, sought an adjournment of a proceeding to allow for the assessment of a development application by a newly formed independent planning panel. The application was brought pursuant to section 88K of the Conveyancing Act 1919 (NSW) and challenged the requirement for the plaintiff to obtain the written consent of the defendant, North Sydney Council, as a landowner before lodging the development application. The dispute centred on whether the new planning system was a valid reason to adjourn the plaintiff’s section 88K application and whether the absence of prejudice to the defendant was sufficient to allow the plaintiff’s application to proceed.

The legal issues before the court were whether the new planning system constituted an appropriate reason for an adjournment and whether the plaintiff's section 88K application should be allowed to proceed despite the absence of prejudice to the defendant. The court examined whether the development application fell within the scope of the relevant regulation and whether the Council's role as a landowner required written consent for the plaintiff to lodge the application. Additionally, the court considered whether the plaintiff had a duty to consent to the lodgement of a development application when acting as a servient owner.

The court determined that the new planning system was not an appropriate reason to adjourn the plaintiff’s section 88K application. The court reasoned that the absence of prejudice to the defendant was insufficient to allow the plaintiff’s application to proceed. The court found that the development application did not fall within the scope of the relevant regulation, and the Council was not a landowner whose written consent was required for the plaintiff to lodge the development application. Furthermore, the court held that a servient owner does not owe a duty to the dominant owner to consent to the lodgement of a development application.

In conclusion, the court dismissed the plaintiff's application for an adjournment. The court held that the new planning system did not provide an appropriate reason for the adjournment, and the absence of prejudice to the defendant was not sufficient to allow the plaintiff's application to proceed. The court found that the development application did not fall within the scope of the relevant regulation, and the Council was not a landowner whose written consent was necessary for the plaintiff to lodge the development application. Additionally, the court held that a servient owner does not owe a duty to the dominant owner to consent to the lodgement of a development application.

Orders