Robertson and anor v Ryde City Council [2011] NSWLEC 1202

Robertson and anor v Ryde City Council [2011] NSWLEC 1202

The Court held that the amended application should be approved because notice of flood-related restrictions would be available to purchasers through the ordinary conveyancing practice of obtaining a s 149(2) certificate, the existing dwelling on the front allotment did not require identification under the Parrott v Kiama planning principle, and the council's failure to impose comparable restrictions on the adjoining 26B Vimiera Road development created a prima facie fundamental inconsistency which displaced any presumption of consistency or desirability of consistency in the council's favour.

Jurisdiction
Australia
Judgment Date
15 July 2011
Procedural Posture
Class 1 Appeal Concerning Development Consent Conditions for a Subdivision on Flood Mapped Land / Principal Extempore Judgment After Hearing
Outcome
Appeal upheld; amended application approved; conditions 14 and 15 of Development Consent 2000/242 amended; respondent directed to amend Land Titles Office records.
Legal Topics
['modification of Development Consent Conditions' 'restrictions as to User' 'positive Covenants' 'overland Stormwater Flow' 'development Control Plan Consistency' 'land Titles Office Records']
['planning and Environment Law' 'development Consent' 'subdivision' 'floodplain Management'] ['modification of Development Consent Conditions' 'restrictions as to User' 'positive Covenants' 'overland Stormwater Flow' 'development Control Plan Consistency' 'land Titles Office Records']

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Procedural Posture

Class 1 Appeal Concerning Development Consent Conditions for a Subdivision on Flood Mapped Land / Principal Extempore Judgment After Hearing

Legal Issues

  1. 1 ["Whether restrictions as to user imposed by conditions 14 and 15 of Development Consent 2000/242 should continue to apply to the applicants' subdivided land in light of flood affectation and the existing dwelling on the front allotment." "Whether the council's treatment of development at 26B Vimiera Road showed inconsistency in applying the relevant Development Control Plan controls." 'Whether notice to future purchasers through a s 149(2) certificate was sufficient without maintaining registered restrictions as to user.' 'Whether the Court could amend the consent conditions and direct the respondent to take steps to amend Land Titles Office records under s 39(2) of the Land and Environment Court Act 1979.']

Ratio Decidendi

The Court held that the amended application should be approved because notice of flood-related restrictions would be available to purchasers through the ordinary conveyancing practice of obtaining a s 149(2) certificate, the existing dwelling on the front allotment did not require identification under the Parrott v Kiama planning principle, and the council's failure to impose comparable restrictions on the adjoining 26B Vimiera Road development created a prima facie fundamental inconsistency which displaced any presumption of consistency or desirability of consistency in the council's favour.

Court Disposition

Appeal upheld; amended application approved; conditions 14 and 15 of Development Consent 2000/242 amended; respondent directed to amend Land Titles Office records.

Orders

  • ['The appeal is upheld;' 'Condition 14 of Development Consent 2000/242 is amended by the deletion of the words in the second line "both lots" and the substitution in lieu thereof of the words "Lot 1";' 'Condition 15 of Development Consent 2000/242 is amended by the deletion of the words "both lots" in line 2 and in...