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

> Reported Decision : 124 LGERA 216

Land and Environment Court of New South Wales

CITATION : Masterton Homes Pty Limited v Pittwater Council [2003] NSWLEC 44 revised - 27/02/2003 APPLICANT: Masterton Homes Pty Limited PARTIES : RESPONDENT: Pittwater Council FILE NUMBER(S) : 10667 of 2002 CORAM: Bignold J KEY ISSUES: Question of Law :- Validity of condition of development consent LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 80 and 80A Conveyancing Act 1919, s 88E Fortunate Investments Pty Ltd v North Sydney Council (2001) 114 LGERA 1; CASES CITED: Hillpalm v Heaven's Door (2002) NSWCA 301; Magill v Santina Pty Ltd (1983) 1 NSWLR 517; Registrar-General v Lee (1990) 19 NSWLR 240. DATES OF HEARING: 06/02/03 written submissions 10/02/03, 12/02/03, 18/02/03 DATE OF JUDGMENT: 02/24/2003

APPLICANT: Mr M Tobias QC with Mr P Clay, Barrister SOLICITORS A Maude LEGAL REPRESENTATIVES: RESPONDENT: Mr A Galasso, Barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Matter No . . 10667 of 2002 Coram : Bignold J 24 February 2003

MASTERTON HOMES PTY LIMITED

Applicant

v

PITTWATER COUNCIL

Respondent

JUDGMENT

A. INTRODUCTION

1. The Applicant, in a pending class 1 proceeding, being an appeal pursuant to the Environmental Planning and Assessment Act 1979 (EP&A Act), s 97 has raised for determination as a preliminary issue the validity of a condition of development consent for the erection on each of three proposed lots of land situate at Lakeview Parade, Warriewood, an attached "dual occupancy development". The parties mutually seek the determination of the question of law in advance of the hearing on the merits of the class 1 proceeding which is listed on 28 February and 3 March 2002.