Blakeney v Mosman Municipal Council (No 2) [2013] NSWLEC 100

Land and Environment Court New South Wales

Medium Neutral Citation: Blakeney v Mosman Municipal Council (No 2) [2013] NSWLEC 100 Hearing dates: 19, 20, 21, 22 March 2013 Decision date: 11 July 2013 Jurisdiction: Class 1 Before: Craig J Decision: 1. The appeal is dismissed. 2. Development Application No. 8.2012.063.1 lodged on 13 April 2012 is refused. 3. Exhibits may be returned. Catchwords: DEVELOPMENT APPLICATION - proposed provision of on-site car parking area and construction of an access driveway along an unformed road - whether that road was a 'public road' within the meaning of the Roads Act 1993 - whether the Court had the power to consent under s 138 of the Roads Act to construct the access driveway on that road - application of s 39(2) of the Land and Environment Court Act 1979 - impact of driveway construction for private use of land zoned for public recreation purposes - long-term pedestrian use of unformed road for access to harbourside bushland reserve and beach - development inconsistent with objectives of planning controls and bushland management plan - application refused Legislation Cited: Environmental Planning and Assessment Act 1979 Conveyancing Act 1919 Land and Environment Court Act 1979 Roads Act 1993 Local Government Act 1906 (now repealed) Local Government Act 1919 (now repealed) State Environmental Planning Policy No 19 - Bushland in Urban Areas Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Threatened Species Conservation Act 1995 Water Management Act 2000 Cases Cited: Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226; 172 LGERA 1 Blakeney v Mosman Council [2013] NSWLEC 37 Casson v Leichhardt Municipal Council [2011] NSWLEC 243; 186 LGERA 34 Connery v Manly Council (1999) 105 LGERA 451 Gibson v Mosman Municipal Council [2001] NSWLEC 134; 114 LGERA 416 Goldberg v Waverley Council [2007] NSWLEC 259; 156 LGERA 27 Newington v Windeyer (1985) 3 NSWLR 555 Owen v O'Connor [1964] NSWR 1312; (1963) 9 LGRA 159 Permanent Trustee Company of NSW Ltd v Campbelltown Municipal Council [1960] HCA 62; 105 CLR 401 Sanderson v Wollongong City Council (1998) 102 LGERA 1 Schubert v Lee [1946] HCA 28; 71 CLR 589 Stojan (No. 9) Pty Ltd v Kenway [2009] NSWCA 364 Super Studio v Waverley Council [2004] NSWLEC 91 Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300; 68 NSWLR 411 Category: Principal judgment Parties: Michael Blakeney (Applicant) Mosman Municipal Council (Respondent) Representation: J E Robson SC with C R Ireland (Applicant) P C Tomasetti SC with A C Hemmings (Respondent) Bartier Perry Solicitors (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 11022 of 2012