Lark v Shellharbour City Council [2015] NSWLEC 1535

Lark v Shellharbour City Council [2015] NSWLEC 1535

The appeal was dismissed because the habitable floor levels, fixed by reference to the flood planning level for flood prone land, were a material and essential feature of the original 2012 consent. Reducing those levels to the as-built 3.03m AHD–3.05m AHD meant the modified development was not substantially the same as the approved development, so s 96(2) was not satisfied and the Court had no power to grant consent. In any event, the proposal failed on its merits because it did not comply with cl 6.3 of Shellharbour Local Environmental Plan 2013 or the consistently applied 500mm freeboard controls, was not shown to be compatible with the flood hazard, and was not in the public interest.

Jurisdiction
Australia
Judgment Date
18 December 2015
Procedural Posture
Class 1 Appeal Under S 97 AA of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Modification Application / Hearing After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated
Outcome
Appeal dismissed; modification application refused.
Legal Topics
['modification Application' 'flood Prone Land' 'flood Planning Level' 'finished Floor Levels' 'substantially the Same Development' 'public Interest']
['environmental Planning and Assessment' 'land and Environment Court Proceedings'] ['modification Application' 'flood Prone Land' 'flood Planning Level' 'finished Floor Levels' 'substantially the Same Development' 'public Interest']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 97 AA of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Modification Application / Hearing After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated

Legal Issues

  1. 1 ['Whether the proposed modification satisfied the jurisdictional requirement in s 96(2) of the Environmental Planning and Assessment Act 1979 that the modified development be substantially the same as the development originally approved.' 'Whether lowering the required habitable floor levels from 3.21m AHD to the as-built levels of 3.03m AHD–3.05m AHD was compatible with the flood hazard of the land under cl 6.3 of Shellharbour Local Environmental Plan 2013 and applicable flood planning controls.' 'Whether approval of the modification would be in the public interest.']

Ratio Decidendi

The appeal was dismissed because the habitable floor levels, fixed by reference to the flood planning level for flood prone land, were a material and essential feature of the original 2012 consent. Reducing those levels to the as-built 3.03m AHD–3.05m AHD meant the modified development was not substantially the same as the approved development, so s 96(2) was not satisfied and the Court had no power to grant consent. In any event, the proposal failed on its merits because it did not comply with cl 6.3 of Shellharbour Local Environmental Plan 2013 or the consistently applied 500mm freeboard controls, was not shown to be compatible with the flood hazard, and was not in the public interest.

Court Disposition

Appeal dismissed; modification application refused.

Orders

  • ['The appeal is dismissed.' 'Modification of Development Consent 456/2011-2, lodged on 15 February 2015 and as amended during the proceedings, to modify Development Consent 456/2011 determined on 15 February 2012, is refused.' 'The exhibits are returned.']