Huntington & Macgillivray v Hurstville City Council & Ors [No 2] [2005] NSWLEC 155

Huntington & Macgillivray v Hurstville City Council & Ors [No 2] [2005] NSWLEC 155

The Court cannot grant development consent (even with deferred commencement conditions) for a proposal where legal access to the site is not yet secured and owner's consent for necessary land is absent; s 40 of the Land and Environment Court Act 1979 does not obviate the statutory requirement for owner’s consent under the Environmental Planning and Assessment Act 1979. In such cases, merit determination should await resolution of access and consent via adjournment and further application.

Jurisdiction
Australia
Judgment Date
20 May 2005
Procedural Posture
Class 1 Proceedings / Questions of Law and Directions in Part Heard Appeal
Outcome
Matter remitted for Commissioner to decide issue of access and intensification, with instructions that deferred commencement is not appropriate and consent cannot be granted until access and owner's consent for necessary land are secured.
Legal Topics
['deferred Commencement Conditions' 'access for Development' 'easements' 'development Consent' "owner's Consent to Development Application"]
['planning Law' 'property Law'] ['deferred Commencement Conditions' 'access for Development' 'easements' 'development Consent' "owner's Consent to Development Application"]

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Procedural Posture

Class 1 Proceedings / Questions of Law and Directions in Part Heard Appeal

Legal Issues

  1. 1 ["Can the Court impose a deferred commencement condition requiring owners' consent and intensification consent for another land?" 'Is the Court empowered to adjourn proceedings to allow easement to be obtained and consider intensification merits?' 'Can consent be granted in the present circumstances with or without condition on necessity for intensification consent?' "Does s 40 Land and Environment Court Act 1979 circumvent the need for owner's consent for development application over land used for development?"]

Ratio Decidendi

The Court cannot grant development consent (even with deferred commencement conditions) for a proposal where legal access to the site is not yet secured and owner's consent for necessary land is absent; s 40 of the Land and Environment Court Act 1979 does not obviate the statutory requirement for owner’s consent under the Environmental Planning and Assessment Act 1979. In such cases, merit determination should await resolution of access and consent via adjournment and further application.

Court Disposition

Matter remitted for Commissioner to decide issue of access and intensification, with instructions that deferred commencement is not appropriate and consent cannot be granted until access and owner's consent for necessary land are secured.

Orders

  • ['Matter remitted to presiding Commissioner for further determination in accordance with judgment' 'Commissioner to decide whether intensification or use of right of way over Lot A is warranted before further progress']