RG Property Eleven Pty Ltd v Fairfield City Council [2017] NSWLEC 1738

RG Property Eleven Pty Ltd v Fairfield City Council [2017] NSWLEC 1738

The Court found the applicant had made a valid application for Roads Act consent for stormwater drainage works in Cutler Lane, and that consent for these works could be granted on appeal. However, because the legal effect and operation of the development depend on the existence of the full easement over both Dan Reserve and Cutler Lane and there was uncertainty whether the necessary easement over Dan Reserve would be granted, consent could only be granted subject to a deferred commencement condition requiring evidence of registration of the easement on title, in accordance with s 80(3) of the EP&A Act and ss 41-42 of the Real Property Act 1900.

Jurisdiction
Australia
Judgment Date
22 December 2017
Procedural Posture
Appeal (class 1 Development Appeal) / Final Judgment
Outcome
Appeal upheld; development consent granted subject to conditions including a deferred commencement condition for registration of easement; Roads Act consent for stormwater drainage works in Cutler Lane granted.
Legal Topics
['development Application' 'stormwater Drainage Easement' 'deferred Commencement Condition' 'consent Under Roads Act 1993' 'registration of Easement']
['planning and Environment Law' 'property Law' 'local Government Law'] ['development Application' 'stormwater Drainage Easement' 'deferred Commencement Condition' 'consent Under Roads Act 1993' 'registration of Easement']

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Procedural Posture

Appeal (class 1 Development Appeal) / Final Judgment

Legal Issues

  1. 1 ['Whether the applicant made a valid application under s138 of the Roads Act 1993 for stormwater drainage works in a road reserve (Cutler Lane)' 'Whether the Court has power to grant consent for those works' 'Whether a deferred commencement condition requiring registration of stormwater drainage easement on title is necessary and appropriate']

Ratio Decidendi

The Court found the applicant had made a valid application for Roads Act consent for stormwater drainage works in Cutler Lane, and that consent for these works could be granted on appeal. However, because the legal effect and operation of the development depend on the existence of the full easement over both Dan Reserve and Cutler Lane and there was uncertainty whether the necessary easement over Dan Reserve would be granted, consent could only be granted subject to a deferred commencement condition requiring evidence of registration of the easement on title, in accordance with s 80(3) of the EP&A Act and ss 41-42 of the Real Property Act 1900.

Court Disposition

Appeal upheld; development consent granted subject to conditions including a deferred commencement condition for registration of easement; Roads Act consent for stormwater drainage works in Cutler Lane granted.

Orders

  • ['Leave granted to rely on amended plans dated 29 November 2017.' 'Consent granted under s138 of the Roads Act 1993 for stormwater drainage works within the road reserve along Cutler Lane.' 'Appeal upheld and development consent for DA 825.1/2016 granted subject to conditions in revised Annexure A, including:'...