Gadallen Pty Limited v Pittwater Council [2013] NSWLEC 1241

Gadallen Pty Limited v Pittwater Council [2013] NSWLEC 1241

The Court held that clause C1.20 applied because the approved affordable housing development was a residential flat building. The variation clause should not be invoked because there was no evidence of technical impracticality or advice from the energy supplier opposing or preventing the works; the electrical evidence was that the works were a doable day to day project. Undergrounding the utility services would serve the planning purposes of improving amenity, reducing visual impact and enabling appropriate street tree planting. The works could be achieved using existing poles and, although they extended beyond the immediate site boundary, they were within the adjacent road verge and were...

Jurisdiction
Australia
Judgment Date
24 December 2013
Procedural Posture
Class 1 Appeal Concerning a Modification Application Under S 96 AA of the Environmental Planning and Assessment Act 1979 to Delete a Development Consent Condition / Hearing Held After a Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979 Did Not Resolve the Dispute
Outcome
Appeal upheld in part
Legal Topics
['development Consent Modification' 'undergrounding of Utility Services' 'development Control Plan Variation' 'streetscape Amenity' 'affordable Rental Housing Development']
['environmental Planning and Assessment' 'land and Environment'] ['development Consent Modification' 'undergrounding of Utility Services' 'development Control Plan Variation' 'streetscape Amenity' 'affordable Rental Housing Development']

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Procedural Posture

Class 1 Appeal Concerning a Modification Application Under S 96 AA of the Environmental Planning and Assessment Act 1979 to Delete a Development Consent Condition / Hearing Held After a Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979 Did Not Resolve the Dispute

Legal Issues

  1. 1 ['Whether condition B6 requiring undergrounding of overhead power supply and communication cables should be deleted or modified' 'Whether clause C1.20 of Pittwater 21 Development Control Plan applied and whether its variation provisions should be invoked' 'Whether requiring undergrounding works beyond the immediate site frontage was reasonable and related to a proper planning purpose' 'Whether the proposal was consistent with the DCP and in the public interest']

Ratio Decidendi

The Court held that clause C1.20 applied because the approved affordable housing development was a residential flat building. The variation clause should not be invoked because there was no evidence of technical impracticality or advice from the energy supplier opposing or preventing the works; the electrical evidence was that the works were a doable day to day project. Undergrounding the utility services would serve the planning purposes of improving amenity, reducing visual impact and enabling appropriate street tree planting. The works could be achieved using existing poles and, although they extended beyond the immediate site boundary, they were within the adjacent road verge and were...

Court Disposition

Appeal upheld in part

Orders

  • ['The appeal is upheld in part.' 'Development consent N0749/10 is modified by amending condition B6 to require all utility services including overhead power supply and communication cables located in the adjacent road verge, excluding the overhead wires that cross St Andrews Gate from the existing pole that supports...