Fitzpatrick Investments Pty Ltd v Blacktown City Council [2012] NSWLEC 1133

Fitzpatrick Investments Pty Ltd v Blacktown City Council [2012] NSWLEC 1133

The imposition of a s 88B restriction as to user for tree preservation is unnecessary in this case because existing planning controls (LEP and TPO) already require council consent for tree removal, and the additional title restriction merely adds a redundant administrative layer without furthering a planning purpose.

Jurisdiction
Australia
Judgment Date
25 May 2012
Procedural Posture
Appeal Against Decision on Modification Application (class 1, Land and Environment Court) / Judgment After Hearing of Appeal
Outcome
Appeal upheld; condition 65(b) of the development consent deleted.
Legal Topics
['modification of Development Consent' 'conditions of Development Consent' 'tree Preservation' 's 88 B Restriction as to User' 'conveyancing Act 1919' 'ecologically Sustainable Development']
['planning and Environment Law'] ['modification of Development Consent' 'conditions of Development Consent' 'tree Preservation' 's 88 B Restriction as to User' 'conveyancing Act 1919' 'ecologically Sustainable Development']

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Procedural Posture

Appeal Against Decision on Modification Application (class 1, Land and Environment Court) / Judgment After Hearing of Appeal

Legal Issues

  1. 1 ['Whether a condition of development consent requiring registration of a s 88B instrument to protect and maintain trees is unnecessary and/or inappropriate where tree removal already requires council consent.']

Ratio Decidendi

The imposition of a s 88B restriction as to user for tree preservation is unnecessary in this case because existing planning controls (LEP and TPO) already require council consent for tree removal, and the additional title restriction merely adds a redundant administrative layer without furthering a planning purpose.

Court Disposition

Appeal upheld; condition 65(b) of the development consent deleted.

Orders

  • ['The appeal is upheld.' 'Development consent DA07/1856 is modified by the deletion of condition 65(b).' 'The exhibits are returned.']