Ramsay & Anor v Wingecarribee Shire Council [2011] NSWLEC 1349

Ramsay & Anor v Wingecarribee Shire Council [2011] NSWLEC 1349

Conditions 9, 11, 14 and 21 could not be imposed because, on the evidence, they did not relate to any matter in s 79C(1) of relevance to the approved two-lot subdivision and access works. Conditions 9 and 11 anticipated a possible future need for a roundabout or different access arising from future industrial development, but the present subdivision did not generate that need and no applicable planning instrument required the land reservation. Conditions 14 and 21 likewise did not satisfy s 80A(1)(a) or s 80A(4)(a). The Act did not empower the Court to impose those conditions in the circumstances, so the appeal was upheld and consent was granted without them.

Jurisdiction
Australia
Judgment Date
28 October 2011
Procedural Posture
Class 1 Appeal Under S 97(1) of the Environmental Planning and Assessment Act 1979 Against Development Consent Conditions for Subdivision of Land / Principal Ex Tempore Judgment Determining Appeal
Outcome
Appeal upheld; development consent granted subject to agreed conditions in Annexure A, without conditions 9, 11, 14 and 21 imposed.
Legal Topics
['validity of Development Consent Conditions Under S 80 A(1)(a) of the Environmental Planning and Assessment Act 1979' 'relevance of Conditions to Matters in S 79 C(1)' 'reservation of Land for Possible Future Roadworks by S 88 B Restriction' 'flood Related Restrictions and Minimum Finished Floor Levels' 'orderly and Economic Development']
['environmental Planning and Assessment' 'land and Environment Court Practice' 'development Consent Conditions' 'subdivision of Land'] ['validity of Development Consent Conditions Under S 80 A(1)(a) of the Environmental Planning and Assessment Act 1979' 'relevance of Conditions to Matters in S 79 C(1)' 'reservation of Land for Possible Future Roadworks by S 88 B Restriction' 'flood Related Restrictions and Minimum Finished Floor Levels' 'orderly and Economic Development']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 97(1) of the Environmental Planning and Assessment Act 1979 Against Development Consent Conditions for Subdivision of Land / Principal Ex Tempore Judgment Determining Appeal

Legal Issues

  1. 1 ['Whether conditions 9, 11, 14 and 21 imposed on the subdivision consent could validly be imposed under s 80A(1)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether the requirement to create a s 88B restriction reserving land in the northwestern corner of the site for possible future roadworks related to the subdivision development.' 'Whether a condition warning that future industrial development might require a new road access to a roundabout and removal of the approved private road/right of carriageway related to the subdivision development.' 'Whether flood-related conditions requiring legally binding instruments and restrictions as to user satisfied s 80A(1)(a) or s 80A(4)(a) of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

Conditions 9, 11, 14 and 21 could not be imposed because, on the evidence, they did not relate to any matter in s 79C(1) of relevance to the approved two-lot subdivision and access works. Conditions 9 and 11 anticipated a possible future need for a roundabout or different access arising from future industrial development, but the present subdivision did not generate that need and no applicable planning instrument required the land reservation. Conditions 14 and 21 likewise did not satisfy s 80A(1)(a) or s 80A(4)(a). The Act did not empower the Court to impose those conditions in the circumstances, so the appeal was upheld and consent was granted without them.

Court Disposition

Appeal upheld; development consent granted subject to agreed conditions in Annexure A, without conditions 9, 11, 14 and 21 imposed.

Orders

  • ['The appeal is upheld.' 'Development consent is granted to Development Application LUA 11/0142 for the subdivision of Lot 1 DP 785111, 416 Berrima Road, Moss Vale into two allotments and the construction of a 22m wide carriage way and the installation of pollution trap and a bio-retention system to treat post...