Spring v North Sydney Council [2018] NSWSC 463

Supreme Court New South Wales

Medium Neutral Citation: Spring v North Sydney Council [2018] NSWSC 463 Hearing dates: 26 March; 4, 6 April 2018 Date of orders: 06 April 2018 Decision date: 06 April 2018 Jurisdiction: Equity Before: Parker J Decision: Plaintiff's application for adjournment refused. Order made for separate and later determination of quantum of any compensation required for grant of compulsory easement sought by plaintiff. Catchwords: PRACTICE AND PROCEDURE – application for adjournment – where adjournment is sought so that a development application can be assessed by a new independent planning panel – whether the planning panel obviates the need for a s 88K application – the new planning system is "not an appropriate reason" to adjourn the plaintiff's s 88K application – the absence of prejudice to the defendant is not enough to allow the plaintiff's application to proceed

DEVELOPMENT APPLICATION – Environmental Planning and Assessment Act 1979 (NSW), s 9.1 – Environmental Planning and Assessment Regulation 2000 (NSW), cl 49 – direction by Minister for Planning – Local Planning Panels Direction - Development Applications, Sch 1, cl 1 – discussion of whether development application is within the scope of cl 1 – discussion of whether Council is a "landowner" whose written consent is required for the plaintiff to lodge the development application

EASEMENTS – Conveyancing Act 1919 (NSW), s 88K – discussion of grant of rights in an easement – discussion of whether a servient owner can owe a duty to the dominant owner to consent to the lodgement of a development application Legislation Cited: Conveyancing Act 1919 (NSW), s 88K Environmental Planning and Assessment Act 1979 (NSW), s 9.1 Environmental Planning and Assessment Regulation 2000 (NSW), cl 49 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Kladis v Lowe [2016] NSWSC 1834 Owners Corporation – Strata Plan No. 8450 v Owners Corporation – Strata Plan No. 54547 [2002] NSWSC 780 Category: Procedural and other rulings Parties: Caroline Spring (Plaintiff) North Sydney Council (Defendant) Representation: Counsel: RM Higgins (Plaintiff) M Condon SC/R Mansted (Defendant)