Foster, G & M v Hurstville City Council [2005] NSWLEC 633

Land and Environment Court of New South Wales

CITATION : Foster, G & M v Hurstville City Council [2005] NSWLEC 633

APPLICANTS George Foster Marie Foster PARTIES : RESPONDENT Hurstville City Council

FILE NUMBER(S) : 11013 of 2005

CORAM: Talbot ACJ

KEY ISSUES: Construction and Interpretation :- whether second dwelling proposed to be erected - status of land transferred to council as access when no dedication has occurred

LEGISLATION CITED: Hurstville Local Environment Plan 1994 cl 11A(1)(a) and cl 11A(3)

DATES OF HEARING: 07/11/2005 EX TEMPORE JUDGMENT DATE : 11/07/2005

APPLICANT Mr D Wilson (Barrister) SOLICITORS Hannaford Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Ms J Hewitt (Solicitor) SOLICITORS Home Wilkinson Lowry

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot ACJ

7 November 2005

11013 of 2005 Foster, G & M v Hurstville Council

EX TEMPORE JUDGMENT 1 Talbot ACJ: By Memorandum of Real Property Act Transfer executed on 29 May 1965, Lot 3 in Deposited Plan 516864 was transferred to the Council of the Municipality of Hurstville, as it was therein described. Prior to the execution of the Transfer correspondence had passed between the council and the then owner of the land which indicates an intention, but does not confirm the fact, that council intended that Lot 3 would be transferred to the council for future road purposes, and that when adjoining land was subdivided the council would construct a kerbed and guttered and paved road on Lot 3 and dedicate the lot as a public road. The evidence in regard to dedication, carrying out of works, the creation of a road or any other act relating to the provision of access across Lot 3 to a public road does not go any further than the expression of the intention expressed in the letter I referred to. However the council does concede that it probably constructed what is now a paved carriageway along Lot 3, or part of it, and other land also held by the council and referred to throughout as David Place. 2 There is evidence before me that the land known as David Place, and including Lot 3, is in fact a made and sealed road with kerbing and guttering, driveway entrances to properties, street lighting and post boxes. There is no evidence of restriction of access along what is signposted as David Place, and the areas identified in that way, as David Place, appear to function in a practical way as a street or road. 3 On 17 July 1990 the Hurstville City Council, as it was then known, determined Development Application No 235/90 under delegated authority and granted consent to a proposal for a detached dual occupancy in respect of a property referred to in the letter of consent as 7 David Place, Peakhurst. Condition 1 of that consent provided as follows: This consent is valid only for a period of five years from the date of council's letter of consent. A further application is required prior to the expiration of the five-year period for any extension of time of this approval.