Arkirbuilt Pty Limited v Ku-Ring-Gai Council [2006] NSWLEC 211

Arkirbuilt Pty Limited v Ku-Ring-Gai Council [2006] NSWLEC 211

The proposed modification only rearranged and amended conditions to permit staged construction and did not change the physical form or substance of the approved development. The Court was satisfied that the modification was of minimal environmental impact, that the development as modified was substantially the same as the approved development, that notification had occurred, that objections had been considered, and that the agreed conditions adequately addressed concerns about orderly and economic development, consolidation, subdivision, occupation and landscaping. No relevant s 79C matter materially affected that conclusion, so the modification application was approved.

Jurisdiction
Australia
Judgment Date
10 April 2006
Procedural Posture
Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Concerning an Application to Modify Development Consent / Ex Tempore Judgment on Modification Application Sought to Be Resolved by Consent
Outcome
Appeal upheld; modification application approved subject to conditions; exhibits returned.
Legal Topics
['modification of Development Consent' 'staged Construction' 'minimal Environmental Impact' 'substantially the Same Development' 'notification and Objections' 'multi Unit Housing Development']
['planning and Environment Law' 'development Consent Modification'] ['modification of Development Consent' 'staged Construction' 'minimal Environmental Impact' 'substantially the Same Development' 'notification and Objections' 'multi Unit Housing Development']

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Procedural Posture

Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Concerning an Application to Modify Development Consent / Ex Tempore Judgment on Modification Application Sought to Be Resolved by Consent

Legal Issues

  1. 1 ['Whether the proposed modification was of minimal environmental impact under s 96(1A)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether the development as modified was substantially the same development as that originally approved under s 96(1A)(b) of the Environmental Planning and Assessment Act 1979.' 'Whether the notification and submission requirements in s 96(1A)(c) and s 96(1A)(d) of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether any relevant matter under s 79C of the Environmental Planning and Assessment Act 1979 materially affected approval of the modification.']

Ratio Decidendi

The proposed modification only rearranged and amended conditions to permit staged construction and did not change the physical form or substance of the approved development. The Court was satisfied that the modification was of minimal environmental impact, that the development as modified was substantially the same as the approved development, that notification had occurred, that objections had been considered, and that the agreed conditions adequately addressed concerns about orderly and economic development, consolidation, subdivision, occupation and landscaping. No relevant s 79C matter materially affected that conclusion, so the modification application was approved.

Court Disposition

Appeal upheld; modification application approved subject to conditions; exhibits returned.

Orders

  • ['The appeal is upheld.' 'The application lodged on 14 March 2006 to modify development consent DA 282/05 for the demolition of all existing structures and the erection of a multi-unit housing development at 2-8 Milray Street and 10 Havilah Lane, Lindfield granted 23 December 2005 is approved, subject to the...