Rich v Lennox Palms Estate and Anor [2009] NSWLEC 167

Rich v Lennox Palms Estate and Anor [2009] NSWLEC 167

No breach of the development consent has been committed because the staged release of subdivision areas with Council approval was in conformity with the 1982 conditions of consent. Condition 6 has not yet arisen as Lot 65 was not created and its requirement may be implemented through a future stage of subdivision. The consent did not mandate subdivision or road creation all at once; its implementation was permissive and has not produced a breach of the Environmental Planning and Assessment Act 1979.

Parties
Applicant: Alan Rich; Applicant: Evelyn Rich; Respondent: Lennox Palms Estate; Respondent: Ballina Shire Council
Jurisdiction
Australia
Judgment Date
25 September 2009
Procedural Posture
Civil / Final Judgment
Outcome
summons dismissed
Legal Topics
Development Consent, Construction of Development Consent, Staged Subdivision, Public Road Access, Breach of Consent
Planning and Development Law Development Consent Construction of Development Consent Staged Subdivision Public Road Access Breach of Consent

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Parties

Alan Rich

Applicant

Evelyn Rich

Applicant

Lennox Palms Estate

Respondent

Ballina Shire Council

Respondent

Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 whether development consent DA82/149 was properly commenced
  2. 2 whether consent provided for staged development of subdivision
  3. 3 whether there was a breach of development consent in failure to extend public road access over Lot 65 to the boundary of the applicants' land

Ratio Decidendi

No breach of the development consent has been committed because the staged release of subdivision areas with Council approval was in conformity with the 1982 conditions of consent. Condition 6 has not yet arisen as Lot 65 was not created and its requirement may be implemented through a future stage of subdivision. The consent did not mandate subdivision or road creation all at once; its implementation was permissive and has not produced a breach of the Environmental Planning and Assessment Act 1979.

Court Disposition

summons dismissed

Orders

  • The Applicants' summons is dismissed.
  • Costs are reserved.