Land and Environment Court of New South Wales CITATION : Brian Leslie Mitsch trading as Brian Mitsch & Associates v Berrigan Shire Council [2006] NSWLEC 772 APPLICANT Brian Leslie Mitsch t/a Brian Mitsch & Associates PARTIES : RESPONDENT Berrigan Shire Council FILE NUMBER(S) : 10824 of 2006 CORAM: Hoffman C KEY ISSUES: Development Consent :- Aerodrome Obstacle Limitation Plan, permissible uses on residential lot in subdivision LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Berrigan Local Environmental Plan DATES OF HEARING: 21/11/06 EX TEMPORE JUDGMENT DATE : 11/21/2006 APPLICANT Mr D Grant, solicitor SOLICITORS Francis Kelly & Grant LEGAL REPRESENTATIVES: RESPONDENT Mr G McCarthy, solicitor SOLICITORS Gerard K McCarthy JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 21 November 2006 10824 of 2006 Brian Leslie Mitsch trading as Brian Mitsch & Associates v Berrigan Shire Council JUDGMENT 1 This was appeal No. 10824 of 2006 between Brian Mitsch & Associates and Berrigan Shire Council in regard to Condition 10 of Development Consent 62/05/DA/D9 issued on 24 October 2005. 2 The original approval for the subdivision was on 4 October 2005, and gave consent to a 21 lot subdivision at Lot 8 DP 270 154 Marion Drive, Tocumwal. Comprising the subdivision was a number of allotments of around 5 ha in area, and one residual lot, being Lot 221, of about 24.7 ha. 3 In the conditions imposed by the council in the original consent, Condition 10 stated: Restriction to user: A restriction to user pursuant to s 88B of the Conveyancing Act 1919 must be created on the title of the residual Lot, No. 221, prohibiting any further development of this lot for residential purposes. 4 The original application had been notified for public comment and approximately eight objections were received, primarily from the members of the Tocumwal Gliding Club who, it seemed, were most concerned that some of the lots were beneath the flight path of gliders and powered planes utilising the airport and that there may at some time be an event where a glider fell short of the runway and would have to land in rural properties outside the boundaries of the airport. 5 Another condition of the original consent was that another s 88B Instrument be imposed on the title of each lot whereby no structure or vegetation must intersect the heights indicated on the Tocumwal Aerodrome Obstacle Limitation Plan to ensure that aircraft are able to safely traverse the area. 6 The applicant, being a surveyor, had advised in documents included in the Court's file that the allotments were well below the Obstacle Limitation Surface and would impose no problem for aeroplanes maintaining the normal and the emergency glide paths, and the council was aware of this at the time of creating the original consent. 7 In dealing with the appeal, the council had notified the objectors of its intention to delete Condition 10, and the council's solicitor, Mr McCarthy, had received two communications, neither of which indicated that there was any further objection to the removal of Condition 10. Therefore I have concluded that the administrative procedures have been properly dealt with in regard to this appeal. 8 Mr McCarthy also advised that in regard to Condition 10 it had not been part of the council officer's original report and recommendation to the council for the approval of the subdivision. It had been imposed, apparently, by a motion from the floor of council at the time of dealing with the application. The lawyers representing the parties in the case advised that it appeared that condition was ultra vires. As a result the parties have come to consent orders; they are seeking to have it deleted. 9 It appears from submissions before me and the documents in the Court file that there is no reason why I should not grant the orders sought by the parties. 10 Therefore the orders of the Court, by consent, are: 1. The appeal is upheld. 2. Condition 10 is deleted from the conditions of Development Consent No. 62/05/DA/D9 granted by the respondent in respect of 21 lot subdivision of Lot 8, in DP 270154 Marion Drive and Babington's Road, Tocumwal. 11 The Court notes the parties have agreed no order as to costs. ___________________ K G Hoffman Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.