Sutherland Shire Council v Owners Corporation of Strata Plan 60215 and Anor [1999] NSWLEC 279

Sutherland Shire Council v Owners Corporation of Strata Plan 60215 and Anor [1999] NSWLEC 279

Condition no 4 of development consent no 97/0888 had not been fulfilled. The right of way was recorded on strata plan no 60215, purchasers were deemed to have knowledge of it, and the first respondent remained legally obliged to create the right of carriageway in favour of 369 The Kingsway, Caringbah. The indefeasibility and traffic-related objections did not warrant refusal of relief, and the order did not determine or extend any entitlement to use the right of way for 371 or 373 The Kingsway.

Jurisdiction
Australia
Judgment Date
22 December 1999
Procedural Posture
Proceedings Seeking a Declaration and Order Concerning Fulfilment of a Development Consent Condition Requiring Creation of a Right of Carriageway / Judgment After Hearing
Outcome
Declaration and order made; costs stood over; exhibits to be returned.
Legal Topics
['development Consent Conditions' 'right of Carriageway' 'registration of Strata Plan' 'indefeasibility of Title' 'development Control Plan Access Requirements']
['planning and Environment Law' 'property Law' 'strata Title'] ['development Consent Conditions' 'right of Carriageway' 'registration of Strata Plan' 'indefeasibility of Title' 'development Control Plan Access Requirements']

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Procedural Posture

Proceedings Seeking a Declaration and Order Concerning Fulfilment of a Development Consent Condition Requiring Creation of a Right of Carriageway / Judgment After Hearing

Legal Issues

  1. 1 ['Whether condition no 4 of development consent no 97/0888 requiring creation of a right of carriageway in favour of 369 The Kingsway, Caringbah had been fulfilled.' "Whether the first respondent should be ordered to create the right of carriageway despite registration of strata plan no 60215 and purchasers' objections." 'Whether the requested relief would affect indefeasibility of title under s 42 of the Real Property Act 1900.' 'Whether the right of carriageway should be treated as benefiting lands other than 369 The Kingsway, Caringbah.']

Ratio Decidendi

Condition no 4 of development consent no 97/0888 had not been fulfilled. The right of way was recorded on strata plan no 60215, purchasers were deemed to have knowledge of it, and the first respondent remained legally obliged to create the right of carriageway in favour of 369 The Kingsway, Caringbah. The indefeasibility and traffic-related objections did not warrant refusal of relief, and the order did not determine or extend any entitlement to use the right of way for 371 or 373 The Kingsway.

Court Disposition

Declaration and order made; costs stood over; exhibits to be returned.

Orders

  • ['A declaration that condition no 4 of development consent no 97/0888 granted on 3 September 1997 in relation to premises known as 153-153A Willarong Road, Caringbah has not been fulfilled.' 'An order that the first respondent create a right of carriageway in favour of premises no 369 The Kingsway, Caringbah within...