Allaby v Ku-ring-gai Council (2) [2009] NSWLEC 1286

Allaby v Ku-ring-gai Council (2) [2009] NSWLEC 1286

The Court was satisfied that the s 96 application related to the same development, had been notified with no objections, and that the reduced and relocated pool avoided the earlier under-croft and support structure impact on the rock face and reasonably satisfied the DCP controls; therefore the agreed consent orders should be granted.

Jurisdiction
Australia
Judgment Date
18 August 2009
Procedural Posture
Section 96 Modification Application Concerning Development Consent for a Dwelling and Associated Facilities / Ex Tempore Judgment by Consent Orders
Outcome
Appeal upheld; consent granted to the s.96 modification application dated 15 July 2009 subject to annexed conditions.
Legal Topics
['section 96 Modification' 'development Consent' 'swimming Pool' 'impact on Rock Shelf' 'dcp Controls']
['planning and Environment Law'] ['section 96 Modification' 'development Consent' 'swimming Pool' 'impact on Rock Shelf' 'dcp Controls']

Case Brief

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Procedural Posture

Section 96 Modification Application Concerning Development Consent for a Dwelling and Associated Facilities / Ex Tempore Judgment by Consent Orders

Legal Issues

  1. 1 ['Whether the s 96 application related to the same development.' 'Whether the proposed modified swimming pool would reasonably satisfy the relevant DCP controls and avoid unacceptable impact on the rock shelf.' 'Whether consent orders should be made where the application had been notified and there were no objections.']

Ratio Decidendi

The Court was satisfied that the s 96 application related to the same development, had been notified with no objections, and that the reduced and relocated pool avoided the earlier under-croft and support structure impact on the rock face and reasonably satisfied the DCP controls; therefore the agreed consent orders should be granted.

Court Disposition

Appeal upheld; consent granted to the s.96 modification application dated 15 July 2009 subject to annexed conditions.

Orders

  • ['The appeal is upheld.' 'Consent is granted to the s.96 modification application dated 15 July 2009 subject to conditions which are annexure "A" hereto.']