Fisk v Ku-ring-gai Council [2007] NSWLEC 12

Fisk v Ku-ring-gai Council [2007] NSWLEC 12

The appeal was allowed because the evidence did not justify reducing the consent period from 5 years to 2 years; disputed notes about removal of trees and works on Council land were to be deleted; the Court would not impose a condition requiring Council to undertake drainage works in the public domain; and Condition 75 should be modified to require an open grill metal fence of limited length rather than deletion of the fence or approval of a solid colourbond fence.

Jurisdiction
Australia
Judgment Date
12 January 2007
Procedural Posture
Development Application Appeal Concerning Conditions of Consent / Determined by Binding S 34 Conference
Outcome
Appeal allowed; conditions of consent varied.
Legal Topics
['development Consent Duration' 'conditions of Consent' 'boundary Fencing Adjacent to Council Reserve' 'external Works on Council Property' 'creek Ecosystem and Fauna Passage']
['environmental Planning and Development Control' 'land and Environment'] ['development Consent Duration' 'conditions of Consent' 'boundary Fencing Adjacent to Council Reserve' 'external Works on Council Property' 'creek Ecosystem and Fauna Passage']

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Procedural Posture

Development Application Appeal Concerning Conditions of Consent / Determined by Binding S 34 Conference

Legal Issues

  1. 1 ['Whether the development consent should operate for 2 years as imposed by Council or for 5 years as provided for in the Environmental Planning & Assessment Act.' 'Whether consent conditions or plan notes should require or permit external works on Council property, including tree removal and drainage infrastructure alterations.' 'Whether Condition 75 should delete the proposed solid colour bond fence along the eastern boundary adjacent to the Council reserve or permit an alternative form of fencing.']

Ratio Decidendi

The appeal was allowed because the evidence did not justify reducing the consent period from 5 years to 2 years; disputed notes about removal of trees and works on Council land were to be deleted; the Court would not impose a condition requiring Council to undertake drainage works in the public domain; and Condition 75 should be modified to require an open grill metal fence of limited length rather than deletion of the fence or approval of a solid colourbond fence.

Court Disposition

Appeal allowed; conditions of consent varied.

Orders

  • ['The appeal is allowed.' 'The conditions of consent for DA 446/06 are varied to allow for a 5 year period and Conditions 75 and 108 amended.' 'Condition 75 amended to require the proposed fence along the Eastern boundary to be reduced in length to 7.5m between A and B as shown on drawing no. S00112406 dated 9 March...