Opera Properties v Northern Beaches Council & anor [2017] NSWLEC 1507

Opera Properties v Northern Beaches Council & anor [2017] NSWLEC 1507

The appeal was dismissed and consent refused because the development application failed to demonstrate provision of suitable vehicular access as required by cl. 7.10 of the Pittwater LEP 2014 and related planning instruments. The evidence established that the current right of way was deficient for the proposed use, the required access and construction impacts could not be deferred to conditions, and the variation to the ROW (easement) sought could not be granted in the context of this application. Satisfying preconditions by deferred commencement was not appropriate or lawful in these circumstances. Without necessary access and infrastructure provisions, the statutory power to grant...

Parties
Applicant: Opera Properties Pty Ltd; First Respondent: Northern Beaches Council; Second Respondent: Uniting Church in Australia Property Trust (NSW)
Jurisdiction
Australia
Judgment Date
19 September 2017
Procedural Posture
Development Appeal / Final Orders and Judgment
Outcome
Appeal dismissed; consent refused
Legal Topics
Development Applications, Land Access and Easements, Subdivision, Deferred Commencement Conditions, Vehicular and Pedestrian Access, Bushfire Management
Planning and Environment Law Property Law Development Applications Land Access and Easements Subdivision Deferred Commencement Conditions Vehicular and Pedestrian Access Bushfire Management

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Parties

Opera Properties Pty Ltd

Applicant

Northern Beaches Council

First Respondent

Uniting Church in Australia Property Trust (NSW)

Second Respondent

Procedural Posture

Development Appeal / Final Orders and Judgment

Legal Issues

  1. 1 Whether the application for staged development meets the preconditions for consent under the relevant planning instrument
  2. 2 Whether owners consent for the use/intensification of the right of carriageway (ROW) is required to validly make the development application
  3. 3 Whether the Land and Environment Court has jurisdiction to vary the easement under s39(2) of the Land and Environment Court Act 1979 (NSW)

Ratio Decidendi

The appeal was dismissed and consent refused because the development application failed to demonstrate provision of suitable vehicular access as required by cl. 7.10 of the Pittwater LEP 2014 and related planning instruments. The evidence established that the current right of way was deficient for the proposed use, the required access and construction impacts could not be deferred to conditions, and the variation to the ROW (easement) sought could not be granted in the context of this application. Satisfying preconditions by deferred commencement was not appropriate or lawful in these circumstances. Without necessary access and infrastructure provisions, the statutory power to grant...

Court Disposition

Appeal dismissed; consent refused

Orders

  • The appeal is dismissed.
  • Staged Development application N0330/16, at Lots 3,4,5 of DP 124602 known as 120 Mona Vale Road Warriewood for: (a) concept proposal for residential development comprising subdivision to create 62 residential allotments and construction of dwellings on each lot, demolition of existing structures and construction of...