Lu, Jin Han and May Wai Yin Chan v Kogarah Council [2007] NSWLEC 75

Lu, Jin Han and May Wai Yin Chan v Kogarah Council [2007] NSWLEC 75

Condition 35 was modified because all parties agreed the boundary fence should be replaced, and after testing light penetration the parties agreed that full height Colourbond lattice panels directly in front of the glass block windows, painted to match the fence on the driveway side and white on the inside for reflectivity, provided the best resolution of the daylight and boundary fence issue. The s 121B order was varied to align with the modified consent condition.

Jurisdiction
Australia
Judgment Date
14 February 2007
Procedural Posture
Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application, and Appeal Concerning an Order Under S 121 B of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment After on Site Hearing
Outcome
Appeal upheld; development consent modified; council order varied; no order as to costs.
Legal Topics
['modification of Development Consent Condition' 'boundary Fence' 'translucent Panels and Lattice Panels' 'residential Alterations and Additions' 'council Order Under S 121 B']
['planning and Environment' 'development Consent'] ['modification of Development Consent Condition' 'boundary Fence' 'translucent Panels and Lattice Panels' 'residential Alterations and Additions' 'council Order Under S 121 B']

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Procedural Posture

Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application, and Appeal Concerning an Order Under S 121 B of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment After on Site Hearing

Legal Issues

  1. 1 ['Whether Condition 35 of Development Consent DA 478/01 should be maintained or modified.' 'Whether translucent or other panels should be placed within the fence on the common boundary between No 8 and No 6A Algernon Street, Oatley.' "Whether the council's order under s 121B of the Environmental Planning and Assessment Act 1979 should be varied consistently with the modification of Condition 35."]

Ratio Decidendi

Condition 35 was modified because all parties agreed the boundary fence should be replaced, and after testing light penetration the parties agreed that full height Colourbond lattice panels directly in front of the glass block windows, painted to match the fence on the driveway side and white on the inside for reflectivity, provided the best resolution of the daylight and boundary fence issue. The s 121B order was varied to align with the modified consent condition.

Court Disposition

Appeal upheld; development consent modified; council order varied; no order as to costs.

Orders

  • ['The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is upheld.' 'Development application No 478/01 to alter and add to the dwelling house at Lot 201, DP 606855, No. 8 Algernon Street, Oatley, is modified to allow for lattice panels to be included in the boundary fence with No 6A Algernon...