Kerr v Hornsby Shire Council [2019] NSWLEC 1138

Kerr v Hornsby Shire Council [2019] NSWLEC 1138

The amended development application was lawful and appropriate for approval because owners consent for works in the shared access handle was provided, the proposal satisfied relevant planning controls including flood planning, heritage and subdivision requirements, the Blue Gum High Forest trees along the access handle were retained and protected by design and conditions, resident objections were considered, and the agreed conditions adequately addressed remaining impacts. The appeal was therefore upheld and DA/1485/2016 approved subject to conditions.

Jurisdiction
Australia
Judgment Date
09 April 2019
Procedural Posture
Class 1 Development Appeal Against Refusal of Development Application No. Da/1485/2016 / Determination of Appeal by Consent Orders After Termination of Conciliation
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['torrens Title Subdivision' 'owners Consent' 'right of Carriageway' 'flood Planning' 'tree Preservation' 'consent Orders' 'heritage Conservation Area']
['planning and Environment' 'development Consent' 'local Government'] ['torrens Title Subdivision' 'owners Consent' 'right of Carriageway' 'flood Planning' 'tree Preservation' 'consent Orders' 'heritage Conservation Area']

Case Brief

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Procedural Posture

Class 1 Development Appeal Against Refusal of Development Application No. Da/1485/2016 / Determination of Appeal by Consent Orders After Termination of Conciliation

Legal Issues

  1. 1 ['Whether owners consent from 105 Copeland Road was required and provided for works in the shared access handle/right of carriageway.' 'Whether the proposed subdivision and stormwater management system satisfied flood planning controls and avoided additional adverse flood impacts.' 'Whether tree preservation, protection and management for trees along the access handle were adequately addressed.' 'Whether resident-proposed amendments to conditions concerning driveway design, landscaping, access during construction, fencing and dilapidation reports should be adopted.' "Whether, notwithstanding the parties' agreement, the Court should grant development consent under s 4.15 of the Environmental Planning and Assessment Act 1979."]

Ratio Decidendi

The amended development application was lawful and appropriate for approval because owners consent for works in the shared access handle was provided, the proposal satisfied relevant planning controls including flood planning, heritage and subdivision requirements, the Blue Gum High Forest trees along the access handle were retained and protected by design and conditions, resident objections were considered, and the agreed conditions adequately addressed remaining impacts. The appeal was therefore upheld and DA/1485/2016 approved subject to conditions.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The Applicant is granted leave to amend the development application and rely on the plan entitled "Plan of Proposed Accessway Location for D.A. 1485/2016 for Lot 5 in D.P. 563935 103A Copeland Road - Beecroft", Plan No. S.15432H, prepared by P.S Graham & Associates dated 22 January 2019.' 'The appeal is upheld.'...