Kahler v Tamworth City Council (No 2) [2003] NSWLEC 377

> Land and Environment Court of New South Wales

CITATION : Kahler v Tamworth City Council (No 2) [2003] NSWLEC 377 APPLICANTS L & J Kahler PARTIES : RESPONDENT Tamworth City Council . FILE NUMBER(S) : 10127 of 2003 CORAM: Moore C Development Application :- KEY ISSUES: Flood liable land Safety of development . LEGISLATION CITED: Environmental Planning and Assessment Act 1979 . Weal v Bathurst City Council [2000] 111 LGERA 181; CASES CITED: Sayer v Hastings Council (matter No 10320 of 1997); . DATES OF HEARING: 13 November 2003 EX TEMPORE JUDGMENT DATE : 11/13/2003

APPLICANT Ms M-L Taylor, solicitor Taylor Kelso LEGAL REPRESENTATIVES: RESPONDENT Mr W O'Rourke, solicitor Deacons

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10127 of 2003

Moore C

13 November 2003 L & J Kahler Applicant v Tamworth City Council Respondent Judgment 1 On 7 July, following a hearing and a view in Tamworth and on 30 June and 1 July, I heard further submissions in Sydney and gave an ex tempore decision concerning a range of issues in these proceedings. These essentially dealt with the question of whether it could possibly be appropriate for the proposed use to be undertaken at the site which is the subject of these proceedings. In light of the preliminary conclusions to which I had come, the matter was adjourned to enable further consideration of a number of matters including a condition proposed by the Council at 4.2 of the Draft Without Prejudice Conditions relating to a proposal for a Flood Management Plan. I undertook this course as I had indicated to the parties that I considered that that issue was so fundamental to the consideration of the ultimate issue for determination that it was inappropriate in light of the decision of the Court of Appeal in Weal v Bathurst City Council [2000] 111 LGERA 181 to delegate that to future consideration by the council's Environment and Planning Services Director as it went to the heart of the issues before the Court.