Opera Properties v Northern Beaches Council & anor [2017] NSWLEC 1507

Land and Environment Court New South Wales

Medium Neutral Citation: Opera Properties v Northern Beaches Council & anor [2017] NSWLEC 1507 Hearing dates: 14-16, 18 August 2017 Date of orders: 19 September 2017 Decision date: 19 September 2017 Jurisdiction: Class 1 Before: Dickson C Decision: The orders of the Court are: 1) The appeal is dismissed; 2) Staged Development application N0330/16, at Lots 3,4,5 of DP 124602 known as 120 Mona Vale Road Warriewood for: a. A concept proposal for residential development comprising subdivision to create 62 residential allotments and construction of dwellings on each lot, demolition of existing structures and construction of associated infrastructure/ civil works (including works to Boundary Street road reserve) and landscaping; and b. Consent to carry out Stage One of the development – comprising the demolition of existing structures, subdivision to create 39 residential lots and a residue lot under Torrens Title, associated infrastructure/ civil works (including works to Boundary Street road reserve) and landscaping; is determined by way of refusal; 3) The request to make an order pursuant to Section 39(2) of the Land and Environment Court Act 1979 (NSW) that the Clause 7 of the Easement in Gross (registered dealing 1945166 as varied by registered dealing AB605380M) registered on title to Lot 10 in Deposited Plan 7055, being that land situate at 10 Jubilee Avenue, Warriewood be amended, is declined; 4) The exhibits are returned with the exception of exhibits R3, 5, A, B and C. Catchwords: DEVELOPMENT APPEAL: Subdivision – power of the Court to vary easement to accommodate access for additional residential lots resulting from the development – owners consent – appropriateness and safety of vehicular and pedestrian access – bushfire management - location of asset protection zones not wholly within the development – appropriateness of alternative bushfire risk assessment by short run fire modelling – land slope – residential lots within outer creek line corridor – vehicular access to development not suitable – development fails precondition. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Environmental Planning and Assessment Regulation 2000 Real Property Act 1900 Cases Cited: Pro-Vision Developments Pty Ltd v Ku ring gai Municipal Council [2003] NSWLEC 226 Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151 Hillpalm v Tweed Shire Council & Anor [2002] NSWLEC17 Becton Corporation Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor [2005] NSWLEC 197 Sydney City Council v IPOH Pty Ltd, [2006] NSW CA 300 Gallagher v Rainbow and Ors (1994) 179 CLR 624 McDougall v Warringah Shire Council (No 2) (1993) 30 NSWLR 258 North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20 Hillpalm v Tweed Shire Council [2002] NSWCA 332 Young and Anor v Gosford City Council [2001] NSWLEC 191 Weal v Bathurst City Council & Anor [2000] NSWCA 88 Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135 Lennard v Jessica Estates Pty Limited [2008] NSWCA 121 Farah v Warringah Council & Others [2006] NSWLEC 191 Texts Cited: Planning for Bushfire Protection, NSW Rural Fire Service, 2006 Draft Planning Strategy for the Ingleside Warriewood Urban Release Area, Pittwater Council, 1995. Category: Principal judgment Parties: Opera Properties Pty Ltd (Applicant) Northern Beaches Council (First Respondent) Uniting Church in Australia Property Trust (NSW) (Second Respondent) Representation: Counsel: Ms H Irish (First Respondent) Mr. S Nash (Second Respondent) Mr A Galasso (Applicant)