Meriton Apartments Pty Limited v City of Canada Bay Council [2003] NSWLEC 92

> Land and Environment Court of New South Wales

CITATION : Meriton Apartments Pty Limited v City of Canada Bay Council [2003] NSWLEC 92 APPLICANT Meriton Apartments Pty Limited PARTIES : RESPONDENT City of Canada Bay Council FILE NUMBER(S) : 10576 of 2002 CORAM: Talbot J KEY ISSUES: Development Consent :- condition requiring restriction as to user approved LEGISLATION CITED: CASES CITED: DATES OF HEARING: 18/02/2003 EX TEMPORE JUDGMENT DATE : 02/18/2003

APPLICANT Mr S Simington (Solicitor) SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham (Solicitor) SOLICITORS Phillips Fox

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10576 of 2002

Talbot J

18 February 2003 Meriton Apartments Pty Limited Applicant v City of Canada Bay Council Respondent Judgment

Introduction 1 HIS HONOUR: A s 88B instrument is needed in this case. I should place this on the record because there is a condition of consent to the effect that there shall never be development on the area of the rock outcrop. Not only will there be the impediment of the condition, which would operate to prevent such development during the life of the development consent itself, there will also be an impediment on the title to the land which perpetuates the constraint. If any subsequent owner lodges a development application it will not be just a question of overcoming the existing consent condition but the circumstances will require the restriction as to user to be changed. In my view this is an appropriate case where a restriction as to user can be recognised as a means of reinforcing a condition of a development consent in perpetuity. That being the objective.