Orion Consulting Engineers Pty Ltd v Blacktown City Council [2017] NSWLEC 1017

Orion Consulting Engineers Pty Ltd v Blacktown City Council [2017] NSWLEC 1017

The Court dismissed the appeal because the proposed works would artificially collect and discharge surface water over Lot 28 and the Applicant had no common law right to do so without the affected owners' consent or a registered easement. A registered easement was therefore required before the issue of a construction certificate, as provided by the existing consent conditions. Although the Applicant's financial hardship was relevant, it did not outweigh the legal obligations, the rights and hardship of the non-party owners of Lot 28, the uncertainty that an easement might never be obtained, and the public interest in orderly and economic development of land.

Jurisdiction
Australia
Judgment Date
20 January 2017
Procedural Posture
Class 1 Appeal Under Section 97 AA of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of an Application to Modify Development Consent / Principal Judgment After Hearing
Outcome
Appeal dismissed
Legal Topics
['modification of Development Consent' 'drainage Easement' 'stormwater Discharge' 'surface Waters' 'nuisance' 'financial Hardship in Planning Discretion']
['environmental Planning and Assessment' 'land and Environment Court Procedure' 'property Law'] ['modification of Development Consent' 'drainage Easement' 'stormwater Discharge' 'surface Waters' 'nuisance' 'financial Hardship in Planning Discretion']

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Procedural Posture

Class 1 Appeal Under Section 97 AA of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of an Application to Modify Development Consent / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether conditions 7.10.1 and 7.10.2 of the development consent requiring a drainage easement should be satisfied before the issue of a construction certificate or before the issue of a subdivision certificate.' 'Whether a registered drainage easement over Lot 28 DP 135206 was required before works commenced.' 'Whether the Applicant had a common law right to discharge stormwater onto the affected land without a registered easement.' "Whether the Applicant's financial hardship was a relevant consideration and what weight it should receive in the modification application."]

Ratio Decidendi

The Court dismissed the appeal because the proposed works would artificially collect and discharge surface water over Lot 28 and the Applicant had no common law right to do so without the affected owners' consent or a registered easement. A registered easement was therefore required before the issue of a construction certificate, as provided by the existing consent conditions. Although the Applicant's financial hardship was relevant, it did not outweigh the legal obligations, the rights and hardship of the non-party owners of Lot 28, the uncertainty that an easement might never be obtained, and the public interest in orderly and economic development of land.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'The Exhibits are returned.']