Kerford Developments Pty Ltd v Albury Council [2012] NSWLEC 1020

Kerford Developments Pty Ltd v Albury Council [2012] NSWLEC 1020

The proposed modifications would remove the environmental reserve that was an ameliorative measure integral to the grant of development consent and legally required for approval; its removal would radically transform the previously approved development, and thus the Court was not satisfied the modified development was substantially the same. Further, the subdivision proposal would adversely impact the habitat of the Speckled Warbler, would not preserve amenity and biodiversity values as required by the planning controls, and the site is not suitable for the proposed development. Accordingly, both appeals were dismissed and both applications refused.

Parties
Applicant: Kerford Developments Pty Ltd; Respondent: Albury Council
Jurisdiction
Australia
Judgment Date
06 February 2012
Procedural Posture
Appeal / Judgment After Final Hearing of Combined Appeals
Outcome
Both appeals dismissed. Development application and modification application refused.
Legal Topics
Development Applications, Modification of Consent, Threatened Species, Residential Subdivision, Tree/vegetation Preservation, Land Zoning, Biodiversity Certification
Environmental Law Planning Law Administrative Law Development Applications Modification of Consent Threatened Species Residential Subdivision Tree/vegetation Preservation +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 22 Party arguments 2
Sign in to unlock

Parties

Kerford Developments Pty Ltd

Applicant

Albury Council

Respondent

Procedural Posture

Appeal / Judgment After Final Hearing of Combined Appeals

Legal Issues

  1. 1 Whether the deletion of condition A4 and other modifications to the 2008 Consent would result in the development as modified being substantially the same as that for which consent was originally granted
  2. 2 Whether the Court has power to grant approval for the subdivision application given s80(2) of the Environmental Planning and Assessment Act 1979
  3. 3 Whether the proposed subdivision would preserve the amenity of the area including biodiversity values and the habitat of the Speckled Warbler

Ratio Decidendi

The proposed modifications would remove the environmental reserve that was an ameliorative measure integral to the grant of development consent and legally required for approval; its removal would radically transform the previously approved development, and thus the Court was not satisfied the modified development was substantially the same. Further, the subdivision proposal would adversely impact the habitat of the Speckled Warbler, would not preserve amenity and biodiversity values as required by the planning controls, and the site is not suitable for the proposed development. Accordingly, both appeals were dismissed and both applications refused.

Court Disposition

Both appeals dismissed. Development application and modification application refused.

Orders

  • Appeal 10622 of 2011 dismissed.
  • Development application DA 10.2011.390925.1 for a 15 lot residential subdivision is refused.