Frith v Ku-ring-gai Council [2020] NSWLEC 1588

Frith v Ku-ring-gai Council [2020] NSWLEC 1588

The Court was not satisfied that the proposed modification was of minimal environmental impact. The sandstone walls were agreed to contribute to the heritage values of the Wahroonga Heritage Conservation Area, the evidence did not establish a vehicular or pedestrian safety need for their partial removal, and deleting the gaps in the timber fence and gates would create a continuous solid plane to Water Street, made more visible by the wall works. Because satisfaction that the modification was of minimal environmental impact was a precondition to the exercise of power under s 4.55(1A) of the Environmental Planning and Assessment Act 1979, the power to modify the consent could not be...

Jurisdiction
Australia
Judgment Date
26 November 2020
Procedural Posture
Class 1 Appeal Concerning Refusal of a Modification Application Under S 4.55(1 A) of the Environmental Planning and Assessment Act 1979 / Final Hearing
Outcome
Appeal dismissed; consent to modify development consent DA0433/18 refused.
Legal Topics
['modification of Development Consent' 'minimal Environmental Impact' 'wahroonga Heritage Conservation Area' 'front Fence and Gates' 'sandstone Wall' 'ku Ring Gai Development Control Plan Section 19 F.4']
['planning and Environment' 'heritage Conservation' 'development Consent Modification'] ['modification of Development Consent' 'minimal Environmental Impact' 'wahroonga Heritage Conservation Area' 'front Fence and Gates' 'sandstone Wall' 'ku Ring Gai Development Control Plan Section 19 F.4']

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Procedural Posture

Class 1 Appeal Concerning Refusal of a Modification Application Under S 4.55(1 A) of the Environmental Planning and Assessment Act 1979 / Final Hearing

Legal Issues

  1. 1 ['Whether the proposed modification was of minimal environmental impact for the purposes of s 4.55(1A) of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed changes to the sandstone walls, front fence and gates would have an adverse effect on the environmental heritage of the Wahroonga Heritage Conservation Area.' 'Whether Section 19F.4 of the Ku-ring-gai Development Control Plan was relevant to the proposed front fence and gates.' 'Whether asserted vehicular and pedestrian safety improvements and privacy benefits justified the proposed modification.']

Ratio Decidendi

The Court was not satisfied that the proposed modification was of minimal environmental impact. The sandstone walls were agreed to contribute to the heritage values of the Wahroonga Heritage Conservation Area, the evidence did not establish a vehicular or pedestrian safety need for their partial removal, and deleting the gaps in the timber fence and gates would create a continuous solid plane to Water Street, made more visible by the wall works. Because satisfaction that the modification was of minimal environmental impact was a precondition to the exercise of power under s 4.55(1A) of the Environmental Planning and Assessment Act 1979, the power to modify the consent could not be...

Court Disposition

Appeal dismissed; consent to modify development consent DA0433/18 refused.

Orders

  • ['The appeal is dismissed.' 'Consent to modify development consent DA0433/18 seeking to enclose the timber inlays for the approved front fence and widen the existing sandstone wall on the land being Lot C in DP 414544 and being the land known as No 28A Water Street, Wahroonga, is refused.']