Kearvall & Clark v Pittwater Council [2009] NSWLEC 1111

Kearvall & Clark v Pittwater Council [2009] NSWLEC 1111

The appeal is allowed only in part; the enclosure of the carport is to be modified so that a minimum of 25% of the perimeter walls must remain open, as per the DCP and expert flood risk evidence. The proposed higher degree of enclosure (20% open) does not adequately satisfy the intent of the flood controls, while 25% open achieves a reasonable balance between security and flood mitigation.

Jurisdiction
Australia
Judgment Date
22 April 2009
Procedural Posture
Appeal Against Refusal of Section 96 Modification of Development Consent / Judgment After Hearing
Outcome
Appeal allowed in part.
Legal Topics
['development Applications' 'flood Risk Management' 'modification of Development Consent' 'carport Enclosure']
['planning and Environment Law'] ['development Applications' 'flood Risk Management' 'modification of Development Consent' 'carport Enclosure']

Case Brief

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Procedural Posture

Appeal Against Refusal of Section 96 Modification of Development Consent / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed enclosure of a carport on flood-liable land complies with the relevant planning controls as to openness under the Flood Risk Management Policy and DCP']

Ratio Decidendi

The appeal is allowed only in part; the enclosure of the carport is to be modified so that a minimum of 25% of the perimeter walls must remain open, as per the DCP and expert flood risk evidence. The proposed higher degree of enclosure (20% open) does not adequately satisfy the intent of the flood controls, while 25% open achieves a reasonable balance between security and flood mitigation.

Court Disposition

Appeal allowed in part.

Orders

  • ['Consent granted to section 96 modification application to Consent No 055/04 at 16 Lake Park Road, Mona Vale, to allow a minimum opening of 25% of the carport perimeter walls, in accordance with conditions in Annexure A.' 'Exhibits to be returned except for 1, 3, 4 and 5.']