Fitzmaurice M R v Tweed Shire Council [2008] NSWLEC 1116

Fitzmaurice M R v Tweed Shire Council [2008] NSWLEC 1116

The appeal was dismissed because maintaining the natural ground level within the easement is necessary to preserve maintenance access to council's services and neighbours' privacy, in accordance with consistent council practice and applicable control plans.

Parties
Applicant: Michael Robert Fitzmaurice; Respondent: Tweed Shire Council
Jurisdiction
Australia
Judgment Date
11 March 2008
Procedural Posture
Appeal Under S 96 of the Environmental Planning and Assessment Act 1979 / Judgment After Hearing
Outcome
Appeal dismissed; modification refused
Legal Topics
Modification Applications, Privacy, Access to Stormwater, Development Control, Boundary Wall, Fill Within Easement
Planning and Environment Modification Applications Privacy Access to Stormwater Development Control Boundary Wall Fill Within Easement

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Parties

Michael Robert Fitzmaurice

Applicant

Tweed Shire Council

Respondent

Procedural Posture

Appeal Under S 96 of the Environmental Planning and Assessment Act 1979 / Judgment After Hearing

Legal Issues

  1. 1 Whether fill should be permitted within the 3.5m-wide easement at the rear of the property
  2. 2 Impact of fill on privacy of neighbours
  3. 3 Impact of fill on access to sewer and stormwater lines

Ratio Decidendi

The appeal was dismissed because maintaining the natural ground level within the easement is necessary to preserve maintenance access to council's services and neighbours' privacy, in accordance with consistent council practice and applicable control plans.

Court Disposition

Appeal dismissed; modification refused

Orders

  • The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is dismissed.
  • Modification of development application No DA06/0751.02 is refused consent; the fill within the 3.5m wide easement must be removed by the applicant down to natural ground levels within 60 days; part of the retaining wall within the easement, the infiltration unit and the pool filter must also be removed.