Nirimba Developments Pty Limited v Blacktown City Council & Anor [2008] NSWLEC 1229

Procedural Posture

Development Application Appeal / Judgment on Merits of Application for Use of Right of Carriageway

Legal Issues

1. 1 ['Whether the development application could be determined in the absence of landowner consent to lodgement.' 'Whether the development application was accompanied by a Statement of Environmental Effects meeting clause 50(1)(a) of the Environmental Planning and Assessment Regulation 2000.' 'Whether development consent could be granted given alleged lack of precision in the description of the proposed development.' 'Whether use of the right of way by vehicular and pedestrian traffic generated by the proposed development would create an unacceptable safety risk in the Quakers Hill Inn car park.' 'Whether increased traffic flow from the proposed development would unacceptably impact the operations of the Quakers Hill Inn.' 'Whether construction traffic would have unacceptable impacts on the operations of the Quakers Hill Inn or on the pavement within the right of carriageway.' 'Whether Nirimba and its successors should be responsible for ongoing maintenance of the right of way and for injuries or damages arising from its use.' 'Whether it was appropriate for the right of way to be used where it would be, or be seen as, performing the functions of a public road without being constructed to public road standards.']

Ratio Decidendi

Because owner's consent had been provided and the easement conferred a full and free right of carriageway for all purposes, the application was to be assessed on its merits. The expert evidence satisfied the Court that the intensified use of the 7 metre right of carriageway for access to the approved residential development, including construction and post-construction traffic and pedestrian movements, could be managed by deferred commencement and other conditions so that safety risks, operational impacts on the Quakers Hill Inn, pavement impacts and maintenance issues would not be unacceptable or unreasonable.

Court Disposition

Appeal upheld; development consent granted subject to deferred commencement and other conditions.

Orders

• ['The appeal, in respect of the right of carriageway burdening Lot 1 DP 806691 that benefits the property known as No. 9 Nirimba Drive, Quakers Hill, is upheld.' "The development application submitted to Blacktown City Council for use of the above right of carriageway is determined by the granting of consent subject...