P S Graham & Associates v Hornsby Shire Council [2010] NSWLEC 189
Obtaining the written consent of the owner of the servient tenement, even when achieved by order of the Supreme Court, satisfies statutory requirements and allows the Land and Environment Court to grant development consent subject to agreed conditions.
Source-derived case information.
- Parties
- Applicant: P S Graham & Associates; Respondent: Hornsby Shire Council
- Jurisdiction
- Australia
- Judgment Date
- 30 September 2010
- Procedural Posture
- Class 1 Appeal / Judgment
- Outcome
- Appeal allowed; development consent granted subject to conditions.
- Legal Topics
- Development Consent, Right of Way, Easement, Owner's Consent, Subdivision, Statutory Requirements
Source-derived case record
Summary, issues, holding and outcome
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Parties
P S Graham & Associates
Applicant
Hornsby Shire Council
Respondent
Procedural Posture
Class 1 Appeal / Judgment
Legal Issues
- 1 Whether development consent for reconstruction of a right of way can be granted without owner’s written consent of the servient tenement
- 2 Whether the court has power to grant consent when the servient owner’s consent is obtained by Supreme Court order
Ratio Decidendi
Obtaining the written consent of the owner of the servient tenement, even when achieved by order of the Supreme Court, satisfies statutory requirements and allows the Land and Environment Court to grant development consent subject to agreed conditions.
Court Disposition
Appeal allowed; development consent granted subject to conditions.
Orders
- Appeal allowed.
- Development consent is granted subject to the attached conditions to development application 1366/2009.
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