Walton v Blacktown City Council

[2006] NSWLEC 65

Land and Environment Court

of New South Wales

CITATION:	Walton v Blacktown City Council [2006] NSWLEC 65
PARTIES:	APPLICANTS L & L Walton RESPONDENT Blacktown City Council
FILE NUMBER(S):	11059 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Application :-
CASES CITED:	Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; .
DATES OF HEARING:	8 February 2006
EX TEMPORE JUDGMENT DATE:	02/08/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr C Gough, solicitor Storey & Gough RESPONDENT Mr P Kelso, solicitor Norman Waterhouse

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

8 February 2006

05/11059 L & L Walton v Blacktown City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Blacktown City Council (the council) of Development Application 4643 of 2004 seeking to increase the number of persons capable of occupying rooms at a guesthouse at 27 Allawah Street, Blacktown which is Lot 2 DP 571420.

2 When I attended the site for the purposes of determining the matter, a range of issues which had been outstanding between the parties, had been resolved - leaving only one matter to be determined.

3 That matter was the question of whether or not a condition requiring a permanent sign or plaque to be fixed to the outside wall of the dwelling adjacent to the front door was appropriate. This sign or plaque would be required to set out what was maximum occupancy permitted for the site.

4 During the course of discussion with the legal representatives the parties, I concluded that a number of other conditions needed to be clarified in order to ensure that there was a consolidated consent incorporating the matters in the earlier currently operative consent for a lower occupancy level and to clarify a number of matters.

5 I was satisfied that this was appropriate so that there was complete certainty, not only in the understanding of the council but also in the minds of Mr and Mrs Walton as to what were the circumstances under which they were permitted to operate their premises. As a result, there will be number of revisions of the conditions of consent by agreement of the parties.

6 Concerning the single outstanding issue, I am satisfied that there is no policy, approved or considered by the council consistent with the process set out by MacClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, upon which to base the proposed condition.

7 If the requirement was to be applied, it would be applied to the premises in the absence of such a policy and to these premises and no others within the council's boundaries.

8 I am not, in these proceedings, dealing with whether or not it might be desirable that the council develop such a policy. However, I have concluded that to apply such a requirement to Mr and Mrs Walton without such process or consideration would be inappropriate.

9 In any event, the wording of the condition was such that it could be rendered nugatory with compliance by the production of a sign with printing so small incapable of being read or understood. The condition was, as worded, in effect, a futility.

10 The orders of the Court will be that:

1. The appeal is upheld;
2. Development Application 4643 of 2004 seeking to increase the number of persons capable of occupying rooms at a guesthouse at 27 Allawah Street, Blacktown, being Lot 2 DP 571420, is determined by the granting of development consent (subject to conditions which remain to be finalised by the legal representatives of the parties); and
3. The exhibits are retained.
Tim Moore
Commissioner of the Court