Progress and Securities v Burwood Council [2006] NSWLEC 706

Progress and Securities v Burwood Council [2006] NSWLEC 706

The disputed Railcorp control conditions should generally preserve Railcorp's role in determining matters affecting rail safety and efficiency, but approval or confirmation should not be unreasonably withheld where appropriate. Draft Condition 169A could not include provisions allocating future removal or alteration costs or giving Railcorp a broad right to extinguish or vary the covenant, because those provisions did not relate to the development and failed the Newbury test. Consent could be granted only with condition 169A confined to physical or agreed drainage requirements and with a further condition preventing issue of a Construction Certificate until a stormwater drainage easement...

Jurisdiction
Australia
Judgment Date
13 November 2006
Procedural Posture
Class 1 Merit Appeal Against Refusal of a Development Application / Final Judgment and Orders
Outcome
Appeal upheld; development consent granted subject to conditions in Annexure A.
Legal Topics
['development Consent Conditions' 'drainage Easement' 'newbury Test for Conditions of Consent' 'rail Corridor Safety and Efficiency' 'conveyancing Act Instruments']
['planning and Environment' 'property Law' 'land and Easements'] ['development Consent Conditions' 'drainage Easement' 'newbury Test for Conditions of Consent' 'rail Corridor Safety and Efficiency' 'conveyancing Act Instruments']

Case Brief

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Procedural Posture

Class 1 Merit Appeal Against Refusal of a Development Application / Final Judgment and Orders

Legal Issues

  1. 1 ["Whether disputed conditions of consent should require Railcorp's agreement or determination for matters affecting the railway line." 'Whether Railcorp should be required not to withhold approvals or confirmations unreasonably.' "Whether draft Condition 169A could lawfully prescribe terms of a drainage easement, including Railcorp's right to extinguish or vary the covenant and require changes at Council's expense." 'Whether consent could be granted where the drainage easement required to implement the drainage scheme had not yet been registered.']

Ratio Decidendi

The disputed Railcorp control conditions should generally preserve Railcorp's role in determining matters affecting rail safety and efficiency, but approval or confirmation should not be unreasonably withheld where appropriate. Draft Condition 169A could not include provisions allocating future removal or alteration costs or giving Railcorp a broad right to extinguish or vary the covenant, because those provisions did not relate to the development and failed the Newbury test. Consent could be granted only with condition 169A confined to physical or agreed drainage requirements and with a further condition preventing issue of a Construction Certificate until a stormwater drainage easement...

Court Disposition

Appeal upheld; development consent granted subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development application to construct a mixed-use development consisting of 233 dwellings, shops and commercial suites on lots 14 and 15 DP 749949, known as 1 Railway Parade is determined by the grant of consent subject to the conditions in Annexure A.' 'The exhibits are returned except...