Elias v Blacktown City Council [2022] NSWLEC 1224

Elias v Blacktown City Council [2022] NSWLEC 1224

The Court had jurisdiction because the essential elements of the approved development would remain and the modified development was substantially the same development for the purposes of s 4.55(2). However, approval was refused on the merits because the proposed reduction of the shared battle-axe access handle to 3.5 m, or 3.6 m as offered at the hearing, would not comply with clause 4.3.10 of the Blacktown Development Control Plan 2015, would completely remove the ability of vehicles travelling in opposite directions to pass, and would inevitably require unsafe or unsatisfactory reversing manoeuvres onto Turner St or within the site. The approved 4.7 m driveway, although below the 5 m...

Jurisdiction
Australia
Judgment Date
02 May 2022
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Modification Application / Final Determination After Hearing
Outcome
Appeal dismissed; modification application refused.
Legal Topics
['modification of Development Consent' 'substantially the Same Development' 'residential Subdivision and Dual Occupancy' 'battle Axe Access Handle' 'driveway Width and Vehicle Passing' 'development Control Plan Compliance']
['environmental Planning and Assessment' 'land and Environment Court Proceedings'] ['modification of Development Consent' 'substantially the Same Development' 'residential Subdivision and Dual Occupancy' 'battle Axe Access Handle' 'driveway Width and Vehicle Passing' 'development Control Plan Compliance']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Modification Application / Final Determination After Hearing

Legal Issues

  1. 1 ['Whether the development as proposed to be modified was substantially the same development as the development for which consent was originally granted under s 4.55(2) of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed reduction of the battle-axe access handle and driveway width was acceptable on the merits having regard to relevant matters under s 4.15 of the Environmental Planning and Assessment Act 1979 and clause 4.3.10 of the Blacktown Development Control Plan 2015.' 'Whether the proposed driveway width would facilitate safe vehicle passing and adequate access for the rear dual occupancy.']

Ratio Decidendi

The Court had jurisdiction because the essential elements of the approved development would remain and the modified development was substantially the same development for the purposes of s 4.55(2). However, approval was refused on the merits because the proposed reduction of the shared battle-axe access handle to 3.5 m, or 3.6 m as offered at the hearing, would not comply with clause 4.3.10 of the Blacktown Development Control Plan 2015, would completely remove the ability of vehicles travelling in opposite directions to pass, and would inevitably require unsafe or unsatisfactory reversing manoeuvres onto Turner St or within the site. The approved 4.7 m driveway, although below the 5 m...

Court Disposition

Appeal dismissed; modification application refused.

Orders

  • ['The appeal is dismissed.' 'Modification Application MOD-21-00162 which seeks consent to modify Development Consent DA-20-01245 for the subdivision of Lot 346 DP 7875 known as 49 Turner St Blacktown and the erection of a two-storey attached dual occupancy by reducing the width of the proposed battle-axe access...