Colston Budd Hunt & Kafes Pty Limited v Pittwater Council [2008] NSWLEC 1334

Colston Budd Hunt & Kafes Pty Limited v Pittwater Council [2008] NSWLEC 1334

The proposed modification is substantially the same development as originally approved; it does not result in a radical transformation nor unreasonable impacts on residential amenity, privacy, or the environment, especially with the imposed conditions including privacy screens and landscaping. Departure from the DCP, including setback requirements, is justified in the given context.

Parties
Applicant: Colston Budd Hunt & Kafes Pty Limited; Respondent: Pittwater Council
Jurisdiction
Australia
Judgment Date
04 August 2008
Procedural Posture
Section 96 Modification Appeal / Final Determination After Hearing
Outcome
Appeal upheld; modification application approved with conditions.
Legal Topics
Modification of Development Consent, Amenity Impacts, Land Use, Development Control Plan
Planning Law Environmental Law Modification of Development Consent Amenity Impacts Land Use Development Control Plan

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Parties

Colston Budd Hunt & Kafes Pty Limited

Applicant

Pittwater Council

Respondent

Procedural Posture

Section 96 Modification Appeal / Final Determination After Hearing

Legal Issues

  1. 1 Whether the proposed modification is substantially the same development as originally approved under s 96
  2. 2 Impacts of the modification on amenity, privacy, noise and visual aspects for adjoining properties
  3. 3 Whether the variation to the 2 metre setback in the DCP is justified

Ratio Decidendi

The proposed modification is substantially the same development as originally approved; it does not result in a radical transformation nor unreasonable impacts on residential amenity, privacy, or the environment, especially with the imposed conditions including privacy screens and landscaping. Departure from the DCP, including setback requirements, is justified in the given context.

Court Disposition

Appeal upheld; modification application approved with conditions.

Orders

  • The s 96(6) appeal in respect of the property known as 205 Riverview Road, Clareville is upheld.
  • The s 96 modification application submitted to Pittwater Council and as amended is approved subject to the conditions contained in Annexure A.