Meehan v North Sydney Council [2007] NSWLEC 860

Meehan v North Sydney Council [2007] NSWLEC 860

The proposed modifications, being further incremental changes including a garden shed and hard-paved area, result in a landscaped area substantially less than originally approved, conflicting with development controls and public interest. The modifications represent development by 'creep' and are not justified on planning merits. Accordingly, the application for modification is refused.

Parties
Applicant: Mary Margaret Meehan; Respondent: North Sydney Council
Jurisdiction
Australia
Judgment Date
12 November 2007
Procedural Posture
Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 (nsw) / Final Judgment (ex Tempore)
Outcome
Appeal dismissed; modification application refused for specified items.
Legal Topics
Modification of Development Consent, Landscaping Requirements, Heritage Developments
Planning Law Environmental Law Modification of Development Consent Landscaping Requirements Heritage Developments

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Parties

Mary Margaret Meehan

Applicant

North Sydney Council

Respondent

Procedural Posture

Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 (nsw) / Final Judgment (ex Tempore)

Legal Issues

  1. 1 Whether the s 96 modification application results in substantially the same development as previously approved
  2. 2 Whether the reduction in landscaped area and addition of structures such as the garden shed should be approved
  3. 3 Compliance with North Sydney LEP and DCP landscaping requirements

Ratio Decidendi

The proposed modifications, being further incremental changes including a garden shed and hard-paved area, result in a landscaped area substantially less than originally approved, conflicting with development controls and public interest. The modifications represent development by 'creep' and are not justified on planning merits. Accordingly, the application for modification is refused.

Court Disposition

Appeal dismissed; modification application refused for specified items.

Orders

  • The appeal under s 96AA(3) of the Environmental Planning and Assessment Act in respect of 40 Kirribilli Avenue Kirribilli is dismissed.
  • The application to North Sydney Council to modify the consent is refused for modifications identified in Part 1 paragraph 5 Items 1, 3, and 4 of the modification application dated 16 January 2007.