Aberasturi v Woollahra Municipal Council [2005] NSWLEC 733

Aberasturi v Woollahra Municipal Council [2005] NSWLEC 733

The plans accompanying the development application did not accurately reflect the current Mean High Water Mark. Because part of the land on which the fence was proposed was within Sydney Harbour and owned by NSW Maritime, both NSW Maritime and the applicant needed to sign the development application. NSW Maritime had not given consent and was unlikely to do so, so the development application was a nullity and the appeal had to be dismissed.

Jurisdiction
Australia
Judgment Date
14 December 2005
Procedural Posture
Development Application Appeal / Ex Tempore Judgment
Outcome
Appeal dismissed; no order as to costs.
Legal Topics
['development Application for Foreshore Fence' 'mean High Water Mark' 'ambulatory Boundary' "owner's Consent" 'sydney Harbour Foreshore']
['environmental Planning and Assessment' 'land and Property' 'maritime Boundary'] ['development Application for Foreshore Fence' 'mean High Water Mark' 'ambulatory Boundary' "owner's Consent" 'sydney Harbour Foreshore']

Case Brief

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Procedural Posture

Development Application Appeal / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the plans for the development application accurately showed the maritime boundary of Sydney Harbour at Mean High Water Mark.' 'Whether the boundary defined by Mean High Water Mark was ambulatory and placed part of the proposed fence area within Sydney Harbour owned by NSW Maritime.' "Whether owner's consent from NSW Maritime was required for the development application." 'Whether the appeal should be dismissed because the development application was a nullity.']

Ratio Decidendi

The plans accompanying the development application did not accurately reflect the current Mean High Water Mark. Because part of the land on which the fence was proposed was within Sydney Harbour and owned by NSW Maritime, both NSW Maritime and the applicant needed to sign the development application. NSW Maritime had not given consent and was unlikely to do so, so the development application was a nullity and the appeal had to be dismissed.

Court Disposition

Appeal dismissed; no order as to costs.

Orders

  • ['That the appeal is dismissed.' 'That the exhibits are returned to the parties except for Exhibits A, 1, 2, 4 and 15.' 'There is no order as to costs.']