Lim v Pittwater Council [2005] NSWLEC 239

Lim v Pittwater Council [2005] NSWLEC 239

The appeal was partly upheld because several consent conditions required amendment: the landscape plan was satisfactory subject to adding a second banksia integrifolia; the 60% screening requirement was insufficiently certain and subjective; British Paints Zulu Plain or darker would achieve the DCP's desired outcomes for wall colouring; and requiring landscaping to be maintained at all times was more appropriate than referring to the life of the development.

Jurisdiction
Australia
Judgment Date
13 May 2005
Procedural Posture
Appeal Against Conditions Attached to Development Consent / Judgment Determining Appeal and Granting Development Consent Subject to Conditions
Outcome
Appeal partly upheld; development consent granted subject to conditions in Annexure A.
Legal Topics
['development Consent Conditions' 'certainty of Conditions' 'landscaping' 'external Colours']
['planning and Environment Law'] ['development Consent Conditions' 'certainty of Conditions' 'landscaping' 'external Colours']

Case Brief

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Procedural Posture

Appeal Against Conditions Attached to Development Consent / Judgment Determining Appeal and Granting Development Consent Subject to Conditions

Legal Issues

  1. 1 ["Whether Condition B45a-12 should require a uniform minimum soil depth or soil depths in accordance with the applicant's landscape plan." 'Whether Condition B45a-14 requiring planting to screen 60% of the built form after five years was sufficiently certain and enforceable.' 'Whether Condition D38 should require the wall render colour to be Dulux Brownstone or darker, or allow British Paints Zulu Plain or darker.' 'Whether Condition D105 should require landscaping to be maintained for the life of the development or at all times.']

Ratio Decidendi

The appeal was partly upheld because several consent conditions required amendment: the landscape plan was satisfactory subject to adding a second banksia integrifolia; the 60% screening requirement was insufficiently certain and subjective; British Paints Zulu Plain or darker would achieve the DCP's desired outcomes for wall colouring; and requiring landscaping to be maintained at all times was more appropriate than referring to the life of the development.

Court Disposition

Appeal partly upheld; development consent granted subject to conditions in Annexure A.

Orders

  • ['The appeal is partly upheld.' 'Development application to alter and extend the existing house on lot 46 DP 16393, known as 45 The Serpentine, Bilgola is determined by the granting of consent subject to the conditions in Annexure A.' 'The exhibits are returned except Exhibits 1 and E.']