To v Ku-ring-gai Municipal Council [2011] NSWLEC 1185

To v Ku-ring-gai Municipal Council [2011] NSWLEC 1185

The modified proposal remained substantially the same development because the dwelling envelope and floor area were not significantly increased, the internal reconfiguration including a second kitchen did not prevent the building functioning as a single dwelling house, and the changes were of the same essence as the original approval. On the merits, the identified impacts on streetscape, heritage context, amenity, landscaping and trees could be adequately addressed by amended plans and conditions requiring works such as reducing and rendering parts of the front utility area and fence, replacing excessive hard paving with soft landscaping, protecting Sydney Blue Gum High Forest, using...

Jurisdiction
Australia
Judgment Date
05 April 2011
Procedural Posture
Class 1 Appeals Concerning a S 96 Modification Application and a S 121 B Order / Extempore Judgment Following S 34 Conciliation Conference Where Agreement Was Not Reached
Outcome
The appeals in respect of No.16 Station Street Pymble were upheld in part; the amended s 96 modification application was granted consent subject to conditions, and the s 121B order was substituted with a modified order requiring staged works to be completed within twelve months to Council's satisfaction.
Legal Topics
['s 96 Modification Application' 's 121 B Order' 'whether Modified Development Is Substantially the Same Development' 'impact on Streetscape' 'impact on Heritage Item and Heritage Conservation Area' 'residential Amenity' 'landscaped Area and Hard Paving' 'tree Impacts and Sydney Blue Gum High Forest']
['environmental Planning and Assessment' 'land and Environment' 'heritage Conservation' 'building Control'] ['s 96 Modification Application' 's 121 B Order' 'whether Modified Development Is Substantially the Same Development' 'impact on Streetscape' 'impact on Heritage Item and Heritage Conservation Area' 'residential Amenity' 'landscaped Area and Hard Paving' 'tree Impacts and Sydney Blue Gum High Forest']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeals Concerning a S 96 Modification Application and a S 121 B Order / Extempore Judgment Following S 34 Conciliation Conference Where Agreement Was Not Reached

Legal Issues

  1. 1 ['Whether the amended s 96 modification application was for substantially the same development as originally approved by the Council.' 'Whether the proposed modifications would have detrimental impacts on the streetscape, the heritage item at No 19 Alma Street, and the heritage conservation area opposite the site.' 'Whether the proposed modifications would adversely affect residential amenity, including by the bulk and scale of boundary fences and the bin utility area.' 'Whether the viewing platform, driveway and other works would adversely affect trees, including Sydney Blue Gum High Forest and a camphor laurel tree on the adjoining heritage item.' 'Whether sufficient information had been provided to assess the application.']

Ratio Decidendi

The modified proposal remained substantially the same development because the dwelling envelope and floor area were not significantly increased, the internal reconfiguration including a second kitchen did not prevent the building functioning as a single dwelling house, and the changes were of the same essence as the original approval. On the merits, the identified impacts on streetscape, heritage context, amenity, landscaping and trees could be adequately addressed by amended plans and conditions requiring works such as reducing and rendering parts of the front utility area and fence, replacing excessive hard paving with soft landscaping, protecting Sydney Blue Gum High Forest, using...

Court Disposition

The appeals in respect of No.16 Station Street Pymble were upheld in part; the amended s 96 modification application was granted consent subject to conditions, and the s 121B order was substituted with a modified order requiring staged works to be completed within twelve months to Council's satisfaction.

Orders

  • ['The appeals in respect of No.16 Station Street Pymble are upheld in part.' "The s 96 modification application as amended is granted consent subject to the consolidated set of conditions in Annexure 'A'." "The appeal against the 121B order is upheld in part and is substituted with the Order in Annexure 'B' that...