Sekendek v Leichhardt Council [2007] NSWLEC 711

Sekendek v Leichhardt Council [2007] NSWLEC 711

The modification appeal was upheld in part because, although the amended works substantially reduced landscape area and provided no deep soil planting, the non-compliance could be acceptably addressed by agreed conditions requiring replacement of the concrete slab with a permeable surface and rebuilding the planter box to allow access to the water table and deep soil. The additional out buildings increased the floor space ratio but did not materially add to the bulk of the development and were acceptable with the landscape amendments. The car access issue could be addressed by increasing headroom, and relocation of the power pole did not need to be required by condition 19A(a) before a...

Jurisdiction
Australia
Judgment Date
17 October 2007
Procedural Posture
Appeals Concerning a S 96 Modification Application and a S 121 B Order Under the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment After Hearing
Outcome
Appeal No. 10829 of 2007 upheld in part; Appeal No. 10830 of 2007 allowed in part and Order EPA/2007/247 amended.
Legal Topics
['development Consent Modification' 'unauthorised Building Works' 'council Order to Comply With Development Consent' 'landscape Area and Deep Soil Planting' 'floor Space Ratio' 'car Access and Vehicle Crossing' 'streetscape and Conservation Area Impacts']
['planning and Environment Law'] ['development Consent Modification' 'unauthorised Building Works' 'council Order to Comply With Development Consent' 'landscape Area and Deep Soil Planting' 'floor Space Ratio' 'car Access and Vehicle Crossing' 'streetscape and Conservation Area Impacts']

Case Brief

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Procedural Posture

Appeals Concerning a S 96 Modification Application and a S 121 B Order Under the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether the s 96 application to modify development consent D/2001/320 should be approved for works constructed without approval that were inconsistent with the development consent.' 'Whether the amended development provided acceptable landscape area and deep soil planting under Leichhardt Local Environmental Plan 2000.' 'Whether the additional out buildings and resulting floor space ratio were acceptable despite non-compliance with Leichhardt Local Environmental Plan 2000.' 'Whether car access via the Collins Street roller door and vehicle crossing should be accepted, including compliance with AS2890.1:2004 and relocation of a power pole.' 'Whether the windows on the Collins Street façade and the fence on Hanover Street had an unacceptable streetscape or conservation area impact.' 'Whether Order EPA/2007/247 should be maintained or amended.']

Ratio Decidendi

The modification appeal was upheld in part because, although the amended works substantially reduced landscape area and provided no deep soil planting, the non-compliance could be acceptably addressed by agreed conditions requiring replacement of the concrete slab with a permeable surface and rebuilding the planter box to allow access to the water table and deep soil. The additional out buildings increased the floor space ratio but did not materially add to the bulk of the development and were acceptable with the landscape amendments. The car access issue could be addressed by increasing headroom, and relocation of the power pole did not need to be required by condition 19A(a) before a...

Court Disposition

Appeal No. 10829 of 2007 upheld in part; Appeal No. 10830 of 2007 allowed in part and Order EPA/2007/247 amended.

Orders

  • ['In relation to Appeal No. 10829 of 2007: The Appeal be upheld in part.' 'Application M/2007/35 made pursuant to s.96 of the Environmental Planning and Assessment Act 1979 to modify development consent D/2201/320 be approved subject to the conditions in Annexure A to these orders.' 'Exhibits other than exhibits 2...