Rogers v Inner West Council [2018] NSWLEC 1305

Land and Environment Court New South Wales

Medium Neutral Citation: Rogers v Inner West Council [2018] NSWLEC 1305 Hearing dates: 19 June 2018 Date of orders: 26 June 2018 Decision date: 26 June 2018 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The application to modify the development consent granted in proceedings 121723 of 2017 by deleting condition 64 is granted. (2) The development consent granted on 6 October 2017 and amended on 6 December 2017 in proceedings 121723 of 2017 for demolition of existing structures, Torrens title subdivision and construction of two dwellings at 9 Thornley Street, Leichhardt, is now subject to the consolidated and modified conditions of development consent at Annexure A. (3) The exhibits are returned, except for Exhibit A. Catchwords: MODIFICATION APPLICATION – application to delete a condition of consent – consent granted by the Court following agreement reached by the parties –condition stating future occupants not eligible for resident parking scheme or parking permits – broad discretion to consider whether condition should be removed on principle or merit – whether condition is appropriate – condition an unreasonable fetter on the exercise of the Council's discretionary power – condition not supported by a planning purpose Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Development Control Plan 2013 Leichhardt Local Environmental Plan 2013 Road Transport (General) Regulation 2013 cl 94 Cases Cited: Affordable Housing NSW Pty Ltd v Sydney City Council [2012] NSWLEC 1314 City West Housing Pty Limited v Council of the City of Sydney [2002] NSWLEC 30 Fortunate Investments Pty Limited v North Sydney Council [2001] NSWLEC 70 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Osborne v Woollahra Municipal Council [2013] NSWLEC 1264 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30 Rosen v City of Sydney Council [2012] NSWLEC 1124 Savage v Council of the City of Sydney [2011] NSWLEC 1291 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Texts Cited: Leichhardt Council policy for Resident Parking Schemes Category: Principal judgment Parties: Tyler Rogers (Applicant) Inner West Council (Respondent) Representation: S Griffiths, Bartier Perry (Applicant) M Bonanno, Inner West Council (Respondent) File Number(s): 2018/82546 Publication restriction: No