Landseair v North Sydney Council [2008] NSWLEC 1321

Landseair v North Sydney Council [2008] NSWLEC 1321

The disputed conditions regarding public access to the wharf satisfy the Newbury test: they serve a planning purpose, relate to the development, and are not so unreasonable that no reasonable consent authority would have imposed them. However, while public access (Condition D37, as amended) is justified, the creation of a right-of-way easement (Condition G3) and a plan of management (Condition G4) are not warranted and are deleted. There has been insufficient change in circumstances to set aside the principle of long-standing public access.

Parties
Applicant: Landseair Pty Ltd; Respondent: North Sydney Council
Jurisdiction
Australia
Judgment Date
07 August 2008
Procedural Posture
Appeal / Judgment
Outcome
Appeal partly upheld (Appeals 10996/2007 and 11164/2007); one appeal dismissed (11165/2007)
Legal Topics
Development Application, Section 96 Application, Public Access to Sydney Harbour, Conditions of Development Consent, Newbury Test
Planning and Environment Law Development Application Section 96 Application Public Access to Sydney Harbour Conditions of Development Consent Newbury Test

Case Brief

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Parties

Landseair Pty Ltd

Applicant

North Sydney Council

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Should the Court exercise its discretion and refuse the s96 applications due to unchanged circumstances?
  2. 2 Is the carrying out of maritime light industrial activity on the wharf lawful?
  3. 3 Is there unacceptable risk to the public if it has access to the wharf?

Ratio Decidendi

The disputed conditions regarding public access to the wharf satisfy the Newbury test: they serve a planning purpose, relate to the development, and are not so unreasonable that no reasonable consent authority would have imposed them. However, while public access (Condition D37, as amended) is justified, the creation of a right-of-way easement (Condition G3) and a plan of management (Condition G4) are not warranted and are deleted. There has been insufficient change in circumstances to set aside the principle of long-standing public access.

Court Disposition

Appeal partly upheld (Appeals 10996/2007 and 11164/2007); one appeal dismissed (11165/2007)

Orders

  • Condition D37 of Consent No DA 1348/81 is substituted with a revised form permitting unrestricted public access from sunrise to sunset, with temporary exceptions for repairs or danger.
  • Condition G3 of Consent No DA 25/02 is deleted.