Attard v Ku-ring-gai Council [2010] NSWLEC 1081

Attard v Ku-ring-gai Council [2010] NSWLEC 1081

The Court had jurisdiction because the proposed modification, involving a rear garage structure with a slightly larger footprint than the garage structure approved by the 2007 consent, would not radically transform the original approved development and was substantially the same development. However, having considered section 79C(1) of the Environmental Planning and Assessment Act 1979 and clause 61D(2) of the Ku-ring-gai Planning Scheme Ordinance, the Court refused the modification because the wide footprint and high pitched hipped roof would create a bulky form across the rear of Craignairn, hem in the heritage item, diminish its setting and adversely affect its heritage significance....

Jurisdiction
Australia
Judgment Date
04 May 2010
Procedural Posture
Class 1 Appeal Under Section 96(6) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Section 96(2) Modification Application / Judgment After Hearing
Outcome
Appeal dismissed; modification application refused.
Legal Topics
['development Consent Modification' 'substantially the Same Development' 'heritage Impact' 'garage Addition to Heritage Item' 'section 79 C Merit Assessment']
['planning and Environment' 'heritage'] ['development Consent Modification' 'substantially the Same Development' 'heritage Impact' 'garage Addition to Heritage Item' 'section 79 C Merit Assessment']

Case Brief

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Procedural Posture

Class 1 Appeal Under Section 96(6) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Section 96(2) Modification Application / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Court had power under section 96(2) of the Environmental Planning and Assessment Act 1979 to deal with the modification application because the modified development was substantially the same as the development originally approved.' 'Whether, after consideration of the relevant matters in section 79C(1) including clause 61D(2) of the Ku-ring-gai Planning Scheme Ordinance, the discretion to approve the modification should be exercised.' 'Whether the proposed garage addition would adversely affect the heritage significance of Craignairn and its setting.' "Whether the applicant's conduct in relation to concurrent consents should lead the Court to refuse the modification application as a matter of discretion."]

Ratio Decidendi

The Court had jurisdiction because the proposed modification, involving a rear garage structure with a slightly larger footprint than the garage structure approved by the 2007 consent, would not radically transform the original approved development and was substantially the same development. However, having considered section 79C(1) of the Environmental Planning and Assessment Act 1979 and clause 61D(2) of the Ku-ring-gai Planning Scheme Ordinance, the Court refused the modification because the wide footprint and high pitched hipped roof would create a bulky form across the rear of Craignairn, hem in the heritage item, diminish its setting and adversely affect its heritage significance....

Court Disposition

Appeal dismissed; modification application refused.

Orders

  • ['The appeal is dismissed.' 'The modification application number MOD252/09 for alterations and additions to erect a single garage addition (7.97m x9.36m) to the rear of the existing dwelling, including a single garage (6.5mx4m) pool equipment and AC unit, sauna, cellar workshop and pool store at the property known...