In the case of Fitzpatrick Investments v Blacktown City Council  NSWLEC 1133, the L&E Court has considered the validity of a condition requiring a restriction to be registered on the title requiring the protection of trees in a subdivision.
The Applicant appealed the Council’s refusal of an application to modify a consent for a 26-lot residential subdivision, so as to delete a condition that required registration on the title of the land that required identified trees to be retained on individual allotments created by the subdivision. The applicant contended that the condition was inappropriate, unnecessary and that it served no planning purpose.
In agreeing to delete the condition, the Court considered the case law that has recognised that restrictions imposed under the Conveyancing Act 1919 should not be used to enforce planning provisions where adequate controls are in place. In the circumstances of the case, the Council’s Tree Protection Order (TPO) and Local Environmental Plan (LEP) required the Council’s consent to remove any tree. It is the Council’s policy to list the TPO and development controls in the s149(2) certificate for the land which would serve to notify a prospective purchaser of the restriction. The Court agreed that a s88B restriction on the title would merely “add another layer” to the planning controls which already require the Council’s consent to the removal of any tree.
The Council argued that the restriction was necessary to ensure that environmental costs are internalised within a development project (one of the principles of ecologically sustainable development) rather than passed to the public at large as externalities through the costs of surveillance, supervision and enforcement of the protection obligations being met by the Council. While accepting this principle, the Court also recognised that an abdication of planning responsibility, by virtue of an excessive reliance on land title registrations, should be avoided, and found that the enforcement provisions under the EP&A Act will adequately ensure that the environmental costs are internalised.
Note: This information is not to be relied upon as legal advice.