Hussar Pty Ltd v Northern Beaches Council; Sekulic v Northern Beaches Council [2018] NSWLEC 1393

Hussar Pty Ltd v Northern Beaches Council; Sekulic v Northern Beaches Council [2018] NSWLEC 1393

The Court held that the overhead wires and cables across and within the site did not achieve the outcomes of cl 2.16 of the Pittwater 21 Development Control Plan 2014. Undergrounding was technically feasible, not contrary to Ausgrid advice, would improve visual amenity and safety, and would enhance opportunities for appropriate landscaping consistent with the Elanora Heights Village Centre Masterplan. The span between poles TH11107 and TH11109 was a single span but was not a short length for the purposes of the variation in cl 2.16, so no variation was justified. Condition B13 was reasonable, related to the development and should be complied with; the modification application to delete it...

Jurisdiction
Australia
Judgment Date
01 August 2018
Procedural Posture
Class 1 Appeal Against an Order and Appeal Against Deemed Refusal of a Modification Application / Final Judgment After Hearing; Appeals Dismissed
Outcome
Both appeals were dismissed and Modification Application Mod2018/0114 was refused.
Legal Topics
['undergrounding of Utility Services' 'non Compliance With Development Consent Condition' 'deletion of Consent Condition' 'streetscape and Visual Amenity' 'elanora Heights Village Centre Landscaping' 'development Control Plan Consistency']
['environmental and Planning Law' 'development Consent Compliance' 'modification Applications'] ['undergrounding of Utility Services' 'non Compliance With Development Consent Condition' 'deletion of Consent Condition' 'streetscape and Visual Amenity' 'elanora Heights Village Centre Landscaping' 'development Control Plan Consistency']

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 Appeal Against an Order and Appeal Against Deemed Refusal of a Modification Application / Final Judgment After Hearing; Appeals Dismissed

Legal Issues

  1. 1 ['Whether Order NOT0147/17 requiring compliance with condition B13 of Development Consent N0353/10/S96/3 should be enforced.' 'Whether Modification Application Mod2018/0114 to delete condition B13 should be approved or refused.' 'Whether the overhead utility services adjacent to and within the site fell within the variation for short lengths of overheads of two spans or less under cl 2.16 of the Pittwater 21 Development Control Plan 2014.' 'Whether undergrounding of the utility services was technically feasible, reasonable, in the public interest and consistent with the desired character and landscape outcomes for Elanora Heights Village Centre.']

Ratio Decidendi

The Court held that the overhead wires and cables across and within the site did not achieve the outcomes of cl 2.16 of the Pittwater 21 Development Control Plan 2014. Undergrounding was technically feasible, not contrary to Ausgrid advice, would improve visual amenity and safety, and would enhance opportunities for appropriate landscaping consistent with the Elanora Heights Village Centre Masterplan. The span between poles TH11107 and TH11109 was a single span but was not a short length for the purposes of the variation in cl 2.16, so no variation was justified. Condition B13 was reasonable, related to the development and should be complied with; the modification application to delete it...

Court Disposition

Both appeals were dismissed and Modification Application Mod2018/0114 was refused.

Orders

  • ['In proceedings No 2017/288107, the appeal is dismissed.' 'In proceedings No 2017/288107, the Exhibits, except Exhibits 1 and B are returned.' 'In proceedings No 2018/168273, the appeal is dismissed.' 'Modification Application, Mod2018/0114, relating to deletion of condition B13 of the Development Consent for Lot 2...