Giannaki v Waverley Council [2010] NSWLEC 191

Giannaki v Waverley Council [2010] NSWLEC 191

Leave was granted because, although the objectors had a good opportunity to put their case to the council and the appeal matters did not go beyond matters raised before the council, there was a serious question about whether the council officers adequately considered the objectors' geotechnical evidence and a serious question that the additional excavation could significantly affect the stability of the residential building on the objectors' adjoining property.

Jurisdiction
Australia
Judgment Date
29 September 2010
Procedural Posture
Class 1 Proceedings; Application by Objectors for Leave to Appeal Against a Modification Determination Under S 96 Aa(4) of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment on Leave Application
Outcome
Leave granted to the objectors to appeal against the modification determination.
Legal Topics
['modification of Development Consent' 'objector Leave to Appeal' 'additional Excavation' 'stability of Adjoining Residential Building']
['environmental Planning and Assessment' 'land and Environment'] ['modification of Development Consent' 'objector Leave to Appeal' 'additional Excavation' 'stability of Adjoining Residential Building']

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Procedural Posture

Class 1 Proceedings; Application by Objectors for Leave to Appeal Against a Modification Determination Under S 96 Aa(4) of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment on Leave Application

Legal Issues

  1. 1 ["Whether the objectors' leave application should be determined immediately or with the hearing of the appeal." "Whether leave should be granted under s 96AA(4) of the Environmental Planning and Assessment Act 1979 to appeal against Waverley Council's determination modifying development consent DA 201/2007." 'Whether the proposed appeal raised matters going beyond those put to the council or sought to challenge the original consent.' "Whether there was a serious question about the adequacy of the council's consideration of geotechnical evidence and the potential impact of the modification on the objectors' property."]

Ratio Decidendi

Leave was granted because, although the objectors had a good opportunity to put their case to the council and the appeal matters did not go beyond matters raised before the council, there was a serious question about whether the council officers adequately considered the objectors' geotechnical evidence and a serious question that the additional excavation could significantly affect the stability of the residential building on the objectors' adjoining property.

Court Disposition

Leave granted to the objectors to appeal against the modification determination.

Orders

  • ['Leave is granted to the objectors to appeal against the modification determination.' "The parties' legal representatives are to confer within the next 24 hours and endeavour to agree on pre-trial directions." 'The matter is listed before the Registrar on Friday 1 October 2010 for the purpose of giving directions...