Bruce Kerr Pty Ltd v Gosford Council [2009] NSWLEC 1183

Bruce Kerr Pty Ltd v Gosford Council [2009] NSWLEC 1183

The Court held that the best solution for revising the garbage pickup point was completion of construction of the rear laneway. The evidence showed that the laneway option would better address waste collection and neighbour amenity than remote pickup at Warwick Street, and the experts agreed the laneway could support garbage truck use if appropriately constructed. The disputed car manoeuvring issue was resolved by agreement, the dilapidation report condition was retained in amended form, and the change was minor and beneficial so s 97B(2) did not apply.

Jurisdiction
Australia
Judgment Date
29 April 2009
Procedural Posture
Appeal Against Refusal of a S 96 Amendment to Development Consent Da34847/2008 / Ex Tempore Judgment
Outcome
appeal upheld; s 96 application granted to amend conditions of development consent DA34847 of 2008
Legal Topics
['section 96 Modification' 'residential Flat Building' 'garbage Pickup Location' 'amenity Impacts' 'laneway Construction and Access' 'traffic and Vehicle Manoeuvring' 'dilapidation Report Conditions' 'section 97 B Amendments']
['planning and Environment Law' 'development Consent Modification'] ['section 96 Modification' 'residential Flat Building' 'garbage Pickup Location' 'amenity Impacts' 'laneway Construction and Access' 'traffic and Vehicle Manoeuvring' 'dilapidation Report Conditions' 'section 97 B Amendments']

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Procedural Posture

Appeal Against Refusal of a S 96 Amendment to Development Consent Da34847/2008 / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether conditions requiring garbage pickup facilities on Memorial Avenue should be deleted or modified in favour of garbage pickup associated with the rear laneway.' 'Whether remote garbage pickup at Warwick Street would create unacceptable amenity impacts on neighbouring properties.' 'Whether the rear laneway was suitable for use by garbage trucks if constructed or upgraded.' 'Whether car turning circles for entry to and exit from garages off the laneway could be achieved.' 'Whether condition 55 requiring a dilapidation report should remain, as amended.' 'Whether the amendments considered by the Court were a minor amendment for the purposes of s 97B of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

The Court held that the best solution for revising the garbage pickup point was completion of construction of the rear laneway. The evidence showed that the laneway option would better address waste collection and neighbour amenity than remote pickup at Warwick Street, and the experts agreed the laneway could support garbage truck use if appropriately constructed. The disputed car manoeuvring issue was resolved by agreement, the dilapidation report condition was retained in amended form, and the change was minor and beneficial so s 97B(2) did not apply.

Court Disposition

appeal upheld; s 96 application granted to amend conditions of development consent DA34847 of 2008

Orders

  • ['The appeal is upheld.' 'The s 96 application is granted to amend the conditions of development consent DA34847 of 2008 granted by Gosford Council at No. 25 Memorial Avenue, Blackwall.' 'The conditions are hereby amended as set out in Exhibit 13 with condition 55 amended as referred to in this judgment.' 'The...