Local Government Legal

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June 2012 – Court considers registration on title of restriction as to user

In the case of McMahon v Wagga Wagga City Council [2012] NSWLEC 1135, the L&E Court has considered the circumstances in which it is appropriate for a council to grant development consent subject to a condition that restricts the use of land and a condition that requires registration of the restriction on the title to the land (under s88B of the Conveyancing Act 1919).

The Facts

The case concerned an appeal against the refusal of a DA seeking consent for a dwelling ancillary to a deer farming operation. The subject site was less than the 200ha minimum lot size for approval of a dwelling. The Council’s position on appeal was that it was appropriate to uphold the SEPP 1 objection on the basis that conditions were proposed to:

  • restrict use and occupation of the dwelling for purposes ancillary to extensive agriculture primarily in the form of deer farming (condition 4); and
  • require the registration on the title of the land of the restriction (condition 5).

The applicant argued that condition 4 should be more broadly worded and that condition 5 was unnecessary.

The Findings

On the evidence, Commissioner Pearson found that the operation of a viable deer farm on the land requires the supervision that the erection and occupation of a dwelling would permit and that the continued efficient and effective agricultural use of the land requires the restriction imposed by condition 4.

Commissioner found that condition 5 should be imposed for the following reasons:

  • it serves the function of notification to prospective purchasers of the restriction imposed on the use of the dwelling house. Given the significance of the restriction, this should not be left to searches carried out by a diligent conveyancer for a prospective purchaser;
  • it would not limit the ability to obtain development consent in the future;
  • it would not duplicate the law providing for enforcement of the provisions in the EP&A Act;
  • it would relate to a relevant consideration under s79C of the EP&A Act and can be properly imposed.

Note: This information is not to be relied upon as legal advice.

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