Field v Lake Macquarie City Council [2009] NSWLEC 1072

Land and Environment Court of New South Wales

CITATION : Field v Lake Macquarie City Council [2009] NSWLEC 1072

APPLICANT Kim & Jason Field PARTIES : RESPONDENT Lake Macquarie City Council

FILE NUMBER(S) : 10775 of 2008

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- s 96 modification to condition requiring grant of drainage easement.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Sunlodge Development Pty Limited v Hornsby Council [1994] NSWLEC 147

DATES OF HEARING: 05/02/09, 17/02/09, 20/02/09

DATE OF JUDGMENT: 13 March 2009

APPLICANT Mr N. Coren, solicitor of Thomas Mitchell Solicitors

LEGAL REPRESENTATIVES: RESPONDENT Mr J. Johnson, barrister Instructed by Mr G. Long, solicitor for Lake Macquarie City Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C

13 March 2009

10775 of 2008 K & J Field v Lake Macquarie City Council

JUDGMENT Background. 1 This appeal is against councils refusal of a s96 application to modify condition 12 of a development consent granted for the erection of a new dwelling at 78 Lake Road, Balcolyn.

2 The development consent was granted on 1 June 2006 containing the following condition: 12 Drainage works. Prior to the occupation of the dwelling the drainage easement and associated drainage works shall be completed . 3 The imposition of this condition apparently arose due to the land being relatively low-lying and situated towards the lower part of a significant catchment area. As such it was part of an overland flow path and subject to inundation during various storm events, necessitating improved drainage protection.