I.D.A. Safe Constructions Pty Ltd v Central Coast Council [2023] NSWLEC 1185

I.D.A. Safe Constructions Pty Ltd v Central Coast Council [2023] NSWLEC 1185

The Court accepted Mr Frecker's expert evidence in the absence of contrary evidence, was satisfied of the flood planning matters under cl 5.21 of Wyong Local Environmental Plan 2013, and found that the modified development was substantially the same as the originally approved development because its performance in a flood event remained substantially the same, with improved performance in smaller flood events and an overall reduction in flood impact notwithstanding the changed width of the two box culverts.

Jurisdiction
Australia
Judgment Date
20 April 2023
Procedural Posture
Class 1 Modification Application Under S 4.55 of the Environmental Planning and Assessment Act 1979 Concerning Development Consent No 1591/2017 / Final Orders; Appeal Upheld and Development Consent Modified
Outcome
The appeal is upheld and Development Consent No 1591/2017 is modified.
Legal Topics
['modification Application' '72 Lot Subdivision' 'box Culverts' 'flood Impacts' 'substantially the Same Development' 'orders by Consent of Parties']
['planning and Environment' 'development Consent Modification' 'subdivision' 'flood Planning'] ['modification Application' '72 Lot Subdivision' 'box Culverts' 'flood Impacts' 'substantially the Same Development' 'orders by Consent of Parties']

Case Brief

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Procedural Posture

Class 1 Modification Application Under S 4.55 of the Environmental Planning and Assessment Act 1979 Concerning Development Consent No 1591/2017 / Final Orders; Appeal Upheld and Development Consent Modified

Legal Issues

  1. 1 ['Whether Development Consent No 1591/2017 should be modified to alter the size and location of two box culverts.' 'Whether the development as modified is substantially the same development as the development for which consent was originally granted.' 'Whether the flood planning matters in cl 5.21 of Wyong Local Environmental Plan 2013 were satisfied.']

Ratio Decidendi

The Court accepted Mr Frecker's expert evidence in the absence of contrary evidence, was satisfied of the flood planning matters under cl 5.21 of Wyong Local Environmental Plan 2013, and found that the modified development was substantially the same as the originally approved development because its performance in a flood event remained substantially the same, with improved performance in smaller flood events and an overall reduction in flood impact notwithstanding the changed width of the two box culverts.

Court Disposition

The appeal is upheld and Development Consent No 1591/2017 is modified.

Orders

  • ['The appeal is upheld.' 'Development Consent No 1591/2017 for a 72 lot subdivision (comprising 69 residential lot, 2 residue lots and 1 detention basin lot) and the creation and dedication of a park, at Lots 10 & 11 in Deposited Plan 1177776 and Lot 31 in Deposited Plan 23810, known as 10 Oscar Drive & 51 Geoffrey...