Fetherston v Wollongong City Council [2016] NSWLEC 1527

Fetherston v Wollongong City Council [2016] NSWLEC 1527

The amended application addressed the council's contentions, complied with the relevant LEP and DCP requirements relied on by the Court, and the objections and expert evidence did not justify refusal. The Court preferred Mr Barthelmess' approach to flooding, creek setback and coastal water level issues because it applied the requirements of DCP 2009, and was satisfied that approval was lawful and appropriate and that objections had been properly taken into account.

Jurisdiction
Australia
Judgment Date
09 November 2016
Procedural Posture
Class 1 Development Appeal Against Refusal of a Development Application / Determination After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated and Consent Orders Were Sought
Outcome
The appeal was upheld and development consent was granted.
Legal Topics
['development Application for Attached Dual Occupancy' 'coastal Zone Development' 'flood Risk' 'coastal Erosion and Inundation' 'development Control Plan Compliance' 'consent Orders']
['planning and Development' 'environmental Law' 'land and Environment Court Procedure'] ['development Application for Attached Dual Occupancy' 'coastal Zone Development' 'flood Risk' 'coastal Erosion and Inundation' 'development Control Plan Compliance' 'consent Orders']

Case Brief

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Procedural Posture

Class 1 Development Appeal Against Refusal of a Development Application / Determination After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated and Consent Orders Were Sought

Legal Issues

  1. 1 ['Whether approval of the amended development application was lawful and appropriate having regard to statutory planning controls and proposed conditions' 'Whether objections to the amended development application had properly been taken into account' 'Whether a further flood study was required for the site' 'Whether the proposed setback from the creek was acceptable' 'Whether coastal processes, coastal inundation or coastal erosion risks warranted refusal or a greater setback' 'Whether the amended proposal had unacceptable impacts on adjoining properties, the locality, views, vehicular access or water quality']

Ratio Decidendi

The amended application addressed the council's contentions, complied with the relevant LEP and DCP requirements relied on by the Court, and the objections and expert evidence did not justify refusal. The Court preferred Mr Barthelmess' approach to flooding, creek setback and coastal water level issues because it applied the requirements of DCP 2009, and was satisfied that approval was lawful and appropriate and that objections had been properly taken into account.

Court Disposition

The appeal was upheld and development consent was granted.

Orders

  • ['The appeal is upheld.' 'Development consent is granted to Development Application No. DA2014/1065 for an attached dual occupancy development at Lot 22 DP 1163490 otherwise known as 4 Kallaroo Avenue, Stanwell Park, subject to the conditions set out in annexure "A".' 'There be no orders for costs.' 'The exhibits...