P S Graham & Associates v Hornsby Shire Council [2010] NSWLEC 189

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
Planning and Development Law Development Consent Right of Way Easement Owner's Consent Subdivision Statutory Requirements

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Parties

P S Graham & Associates

Applicant

Hornsby Shire Council

Respondent

Procedural Posture

Class 1 Appeal / Judgment

  1. 1 Whether development consent for reconstruction of a right of way can be granted without owner’s written consent of the servient tenement
  2. 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.