Mauro Poletti v Inner West Council [2017] NSWLEC 1325

Mauro Poletti v Inner West Council [2017] NSWLEC 1325

The executed Transfer Granting Easement did not itself create a legal easement for the purposes of granting consent because an easement is created on registration and unregistered equitable rights may not persist in perpetuity. Registration before operational consent provided certainty for future owners and was consistent with Council practice and the objects of the Environmental Planning and Assessment Act 1979, so condition 1 remained as a deferred commencement condition. Condition 11(a) was deleted because similar glazed balustrades had been approved nearby, the proposed balustrade would have limited visibility from public areas, and it would have minimal impact on the heritage or...

Jurisdiction
Australia
Judgment Date
27 June 2017
Procedural Posture
Class 1 Development Application Appeal Under S.97(1) of the Environmental Planning and Assessment Act 1979 / Appeal Against Conditions of Development Consent Granted for Development Application D/2016/434
Outcome
Appeal upheld; condition 11(a) deleted; development consent granted subject to revised conditions; condition 1 retained as a deferred commencement condition.
Legal Topics
['deferred Commencement Condition' 'drainage Easement' 'registration of Easement' 'stormwater Drainage' 'heritage Conservation Area' 'balcony Balustrade']
['planning and Environment' 'development Consent' 'property Law'] ['deferred Commencement Condition' 'drainage Easement' 'registration of Easement' 'stormwater Drainage' 'heritage Conservation Area' 'balcony Balustrade']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal Under S.97(1) of the Environmental Planning and Assessment Act 1979 / Appeal Against Conditions of Development Consent Granted for Development Application D/2016/434

Legal Issues

  1. 1 ["Whether Council's requirement that the Applicant obtain an easement for drainage over 341 Darling Street was satisfied by an executed Transfer Granting Easement agreement before registration" 'Whether the requirement to register the drainage easement should remain as a deferred commencement condition or be replaced by an operational condition requiring registration before issue of an occupation certificate' 'Whether condition 11(a), requiring the proposed first-floor balcony balustrade to comprise vertical metal pickets rather than glazing, should be deleted']

Ratio Decidendi

The executed Transfer Granting Easement did not itself create a legal easement for the purposes of granting consent because an easement is created on registration and unregistered equitable rights may not persist in perpetuity. Registration before operational consent provided certainty for future owners and was consistent with Council practice and the objects of the Environmental Planning and Assessment Act 1979, so condition 1 remained as a deferred commencement condition. Condition 11(a) was deleted because similar glazed balustrades had been approved nearby, the proposed balustrade would have limited visibility from public areas, and it would have minimal impact on the heritage or...

Court Disposition

Appeal upheld; condition 11(a) deleted; development consent granted subject to revised conditions; condition 1 retained as a deferred commencement condition.

Orders

  • ['The appeal is upheld.' 'The conditions of consent for Development Application D/2016/434), issued by the Respondent on 14 February, for the internal alterations and additions to a class 4 dwelling on first floor, strip out of retail premises for new salt float tank on ground and lower ground floors (hours of...