School of Surveying and Spatial Information Systems

The University of New South Wales


Summaries of Recent NSW Land and Environment Court Cases

By Kyle Kenna

Supervised by Mr M. Green

October 2004


Introduction

The Legal system in Australia allows society the right to object or appeal a decision, such as the refusal of a development made by a governing body.  Councils, neighbours and the general public all have the right to object to a proposed development.  Alternatively, the developer has the right to appeal the refusal of a development application.  These cases are becoming more frequent in courts as a result of the increasing population and land shortage, leading to unsuitable sites being developed.

 

The following cases are concerned with different types of developments and some of the considerations that are involved in planning a development.

 

Subdivision Cases

Cases studied:

·       Masterton Homes Pty Limited v Pittwater Council [2003] NSWLEC 44

·       Monnock v Pittwater Council [2003] NSWLEC 151

 

Both subdivision cases deal with Company Title and more specifically, whether a company title arrangement is a type of subdivision as is defined in the EP&A Act and Pittwater Council’s LEP.  The cases are very similar in nature in that they both involve the same council and the same type of developments with similar conditions being placed on them.  The only difference in the cases being that the respective judges could not agree on whether a company title arrangement is a type of subdivision that creates separate allotments.

 

Figure 1 The attached Dual Occupancy Development in the Masterton Homes case.

 

 

Existing Use Rights Cases

Cases studied include:

 

In Armstrong v Ashfield Municipal Council [2002] and in Mona Vale Pty Ltd v Pittwater Council [2003], the court is asked to determine whether existing use rights benefiting the respective sites, extend below the surface of the land.  The respective judges in the cases, Coram Cowdroy J in Armstrong and Coram Pearlman J in Mona Vale, use the same methods in determining the extent of the existing use right.  These methods were derived in Parramatta City Council v Brickworks Ltd [1972] 128 CLR1 and Eaton and Sons v Warringah Shire Council [1972] 129 CLR270 and state that the individual facts of the case will show the extent of the existing use and that the land, the existing use applies to, should be treated as a unit. 

 

Figure 2 The Finished development in the Mona vale Pty Ltd v Pittwater Council case.

 

Heritage Cases

Cases studied include:

 

In Glen and Patricia Croxson v Mosman Municipal Council, the court had to determine whether a development proposal, which involved extensions being added to a garage, would impose on the setting of a heritage listed laneway.  The Council placed high values on the heritage significant laneways stating that the laneways are “ an important aspect of the historic urban structure of the municipality” and that they “ in many cases display pleasing visual characteristics” (The Mosman Heritage Review 1996). 

 

Figure 3 The heritage significant laneway in Croxson v Mosman Municpal Council.

 

In Burkhart Enterprises Pty Ltd v Woollahra Council, Watts C had to determine whether extensions to a single storey weatherboard house would detract from the heritage significance of the Paddington Heritage Conservation Area

 

In Paul Jones & Associates Pty Ltd v Woollahra Municipal Council, the Council had identified a building known as the Knowle to be an item of potential heritage significance.  The applicant planned to renovate and add 3-storey residential flat building to the existing residence.  The Council were opposed to the applicant’s proposal, as it would block views to and from the Knowle and would therefore have a negative impact on the Knowle’s curtilage and setting.  The court had to decide whether the proposed development would have a damaging impact on the existing building and therefore be refused.

 

Environment Related Cases

Cases studied:

·       Australand v Sutherland Shire Council [2004] NSWLEC 9

·       Sale v Ku-ring-gai Council [2004] NSWLEC 24

·       JCS Developments Pty Ltd v Sutherland Shire Council [2004] NSWLEC 35

 

In Australand v Sutherland Shire Council, the proposed development had a direct impact on the environment, in particular the endangered Green and Gold Bell Frog, the Sydney Freshwater Wetland and the Kurnell Dune Forest.  The court had to determine whether the measures proposed by the applicant to protect the different ecological communities on the site were strong enough to allow the development to be constructed.

 

The case of Sale v Ku-ring-gai Council showed that a development application can be refused due to the characteristics of the environment having a direct impact on the proposed development.  In this case, the surrounding bushland was considered by the Council and local residents to be bushfire prone.  The court had to establish whether this risk was great enough to refuse the development. 

 

In JCS Developments Pty Ltd v Sutherland Shire Council, the Council and Coram Watts C refused the applicants development application as it was to determined that the proposed development would have a detrimental effect on the visual qualities of the Salmon Haul Reserve to the rear of the proposal and also on the coastal landscape of the local area. 

Figure 4 The views that the court determined would be damaged by the proposed development in JCS Developments v Sutherland Shire Council.

 

Links

Austlii

Lawlink

DIPNR

Pittwater Council

Ashfield Municipal Council

Mosman Municipal Council

Woollahra Municipal Council

Sutherland Shire Council

Ku-ring-gai Council


Further Information
For more information, please contact:

Mr M. B. Green
Email: Michael.Green@unsw.edu.au

Mail:
School of Surveying and Spatial Information Systems
University of New South Wales
UNSW SYDNEY NSW 2052
Australia

Phone: +61-2-9385-4193
Fax:      +61-2-9313-7493
WWW: http://www.gmat.unsw.edu.au

Mr Kyle Kenna
Email: The_wingnut@hotmail.com