Gamkrelidge & Partners Pty Ltd v Randwick Municipal Council [1988] NSWLEC 34

Gamkrelidge & Partners Pty Ltd v Randwick Municipal Council [1988] NSWLEC 34

The appeal turns on the fact that lot 9 DP 25257 is not land to which the development application relates, as established by the descriptions in the application and plans, and thus the owner's consent is not required. Existing legal authority supports that development applications need not include all land involved in ancillary uses. Conditions requiring works on right-of-way are validly imposed under s.91(3)(f) of the Act even if the land is not part of the application.

Parties
Applicant: Gamkrelidge & Partners Pty Ltd; Respondent: Randwick Municipal Council
Jurisdiction
Australia
Judgment Date
07 December 1988
Procedural Posture
Appeal / Judgment
Outcome
three questions answered; final orders deferred pending clarification of right-of-way user
Legal Topics
Development Applications, Right of Carriageway, Conditions of Consent
Planning Law Development Applications Right of Carriageway Conditions of Consent

Case Brief

Summary, issues, holding and outcome

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Parties

Gamkrelidge & Partners Pty Ltd

Applicant

Randwick Municipal Council

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether lot 9 DP 25257 is land to which development application No. 384/87 relates
  2. 2 Whether the consent in writing of any person other than the registered proprietor of lot 15 DP 25257 is required under section 77(1)(b) of the Environmental Planning and Assessment Act 1979 in respect of the said development application
  3. 3 Whether the respondent can validly impose as a condition of consent a requirement for the construction, sealing and drainage of the right of way

Ratio Decidendi

The appeal turns on the fact that lot 9 DP 25257 is not land to which the development application relates, as established by the descriptions in the application and plans, and thus the owner's consent is not required. Existing legal authority supports that development applications need not include all land involved in ancillary uses. Conditions requiring works on right-of-way are validly imposed under s.91(3)(f) of the Act even if the land is not part of the application.

Court Disposition

three questions answered; final orders deferred pending clarification of right-of-way user

Orders

  • The 3 questions be answered as follows: Question 1 - No; Question 2 - No; Question 3 - Yes
  • Liberty to restore on 7 days notice for the purpose of finally disposing of the appeal