Kousis v Inner West Council [2022] NSWLEC 1611

Kousis v Inner West Council [2022] NSWLEC 1611

The proposed modification to delete the construction access restriction (Condition 16) and advisory note was not of minimal, very small or negligible environmental impact as required by s 4.55(1A) of the Environmental Planning and Assessment Act 1979; the effect of the modification would be to permit construction access via York Place, impacting the amenity and safety of that shared zone, with insufficient legal basis for access over the intervening strip of land, and contrary to submissions received from neighbours. The original condition and advisory note were validly imposed for a planning purpose, reasonably related to the development, and not Wednesbury unreasonable. The appeal must...

Parties
First Applicant: Filippo Kousis; Second Applicant: Amy Kousis; Respondent: Inner West Council
Jurisdiction
Australia
Judgment Date
04 November 2022
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Modification Application / Final Decision and Orders
Outcome
Appeal dismissed
Legal Topics
Modification of Development Consent, Construction Traffic Management, Legal Access and Rights of Way, Validity of Consent Conditions, Public Interest in Development Assessment
Planning and Environment Law Modification of Development Consent Construction Traffic Management Legal Access and Rights of Way Validity of Consent Conditions Public Interest in Development Assessment

Case Brief

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Parties

Filippo Kousis

First Applicant

Amy Kousis

Second Applicant

Inner West Council

Respondent

Procedural Posture

Class 1 Appeal Against Deemed Refusal of Modification Application / Final Decision and Orders

Legal Issues

  1. 1 Whether the proposed modification to development consent (removal of condition restricting construction access and deletion of advisory note) is of minimal environmental impact under s 4.55(1A) of the Environmental Planning and Assessment Act 1979
  2. 2 Validity of consent condition limiting access to Nelson Street and of the advisory note concerning legal access via York Place
  3. 3 Whether consent authority had power to modify the condition or note in the particular circumstances

Ratio Decidendi

The proposed modification to delete the construction access restriction (Condition 16) and advisory note was not of minimal, very small or negligible environmental impact as required by s 4.55(1A) of the Environmental Planning and Assessment Act 1979; the effect of the modification would be to permit construction access via York Place, impacting the amenity and safety of that shared zone, with insufficient legal basis for access over the intervening strip of land, and contrary to submissions received from neighbours. The original condition and advisory note were validly imposed for a planning purpose, reasonably related to the development, and not Wednesbury unreasonable. The appeal must...

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • The Exhibits A, B, C, D, E, G, J, K, L, M, 1, 2, 3, 4, 5, 6, and 7 are retained. Exhibit H is returned.