Mirvac Projects Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 275

Mirvac Projects Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 275

The s 96 modifications should be approved because the council did not oppose them, the modifications were generally supported by appropriate planning controls and existing consent protections, and the Court was satisfied that tree retention, ecological protection, road reconfiguration and lot yield issues were adequately addressed. However, a s 88B instrument was required for Lot 3 to impose a maximum ridge height equivalent to a one-storey dwelling so as to protect the setting of Glenwood House, the heritage item.

Jurisdiction
Australia
Judgment Date
04 May 2005
Procedural Posture
Appeals Concerning S 96 Modification Applications for Earthworks and Re Configuration of Lots in an Approved Subdivision / Judgment After Hearing; Appeals 11508 and 11516 of 2004 Determined
Outcome
Appeals upheld; s 96 modifications approved subject to conditions.
Legal Topics
['s 96 Modification Applications' 'subdivision Consent' 'earthworks Consent' 'restrictive Covenant' 's 88 B Instrument' 'tree Retention' 'heritage Item']
['planning and Environment' 'development Consent' 'heritage'] ['s 96 Modification Applications' 'subdivision Consent' 'earthworks Consent' 'restrictive Covenant' 's 88 B Instrument' 'tree Retention' 'heritage Item']

Case Brief

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Procedural Posture

Appeals Concerning S 96 Modification Applications for Earthworks and Re Configuration of Lots in an Approved Subdivision / Judgment After Hearing; Appeals 11508 and 11516 of 2004 Determined

Legal Issues

  1. 1 ['Whether the s 96 modifications sought to the earthworks consent and subdivision consent should be approved.' 'Whether condition 12 requiring a restrictive covenant or s 88B instrument should be deleted or modified.' 'Whether conditions relating to tree retention, retaining walls, landscaping, access widths, internal road width and lot size should be amended or deleted.' 'Whether a dilapidation report condition was warranted.']

Ratio Decidendi

The s 96 modifications should be approved because the council did not oppose them, the modifications were generally supported by appropriate planning controls and existing consent protections, and the Court was satisfied that tree retention, ecological protection, road reconfiguration and lot yield issues were adequately addressed. However, a s 88B instrument was required for Lot 3 to impose a maximum ridge height equivalent to a one-storey dwelling so as to protect the setting of Glenwood House, the heritage item.

Court Disposition

Appeals upheld; s 96 modifications approved subject to conditions.

Orders

  • ['The appeals in respect of the s 96 applications, appeals 11508 and 11516 of 2004 are upheld.' 'The s 96 modifications sought to the earthworks consent and the subdivision consent are approved subject to conditions.' 'The exhibits with the exception of M and 23 are returned.']