Turner v Ku-ring-gai Council [2016] NSWLEC 1418

Turner v Ku-ring-gai Council [2016] NSWLEC 1418

Having considered the parties' material, the submissions, and the site inspection, the Court was satisfied that the agreed orders could be made. The survey showed the retaining wall and metal fence were wholly on the applicant's land and did not encroach onto 42A Saddington Street; the modification was minor with minor environmental impact; bushfire and structural certifications were provided; council did not maintain issues about drainage or fill; and there was no evidence of adverse solar access impact or unacceptable visual impact.

Jurisdiction
Australia
Judgment Date
19 September 2016
Procedural Posture
Class 1 Appeal Against Deemed Refusal of a Modification Application Under S 96(6) of the Environmental Planning and Assessment Act 1979 / Consent Orders Hearing
Outcome
Appeal upheld
Legal Topics
['modification Application' 'retaining Walls' 'landscaping' 'tree Replacement' 'boundary Fencing' 'submissions by Objectors' 'consent Orders']
['planning and Environment' 'development Consent Modification'] ['modification Application' 'retaining Walls' 'landscaping' 'tree Replacement' 'boundary Fencing' 'submissions by Objectors' 'consent Orders']

Case Brief

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of a Modification Application Under S 96(6) of the Environmental Planning and Assessment Act 1979 / Consent Orders Hearing

Legal Issues

  1. 1 ['Whether the development consent should be modified to permit retaining walls, changed ground levels, amended landscaping and boundary fencing.' 'Whether the proposal as modified had only minor environmental impact and was substantially the same as the approved development.' 'Whether objections concerning structural integrity, stormwater drainage, fill, visual impact, solar access, fencing setback and gaps beneath the fence prevented the making of consent orders.' 'Whether the landscape plan should require planting of an Angophora costata to replace Tree 18.']

Ratio Decidendi

Having considered the parties' material, the submissions, and the site inspection, the Court was satisfied that the agreed orders could be made. The survey showed the retaining wall and metal fence were wholly on the applicant's land and did not encroach onto 42A Saddington Street; the modification was minor with minor environmental impact; bushfire and structural certifications were provided; council did not maintain issues about drainage or fill; and there was no evidence of adverse solar access impact or unacceptable visual impact.

Court Disposition

Appeal upheld

Orders

  • ['The Class 1 appeal is upheld.' 'Development Consent No. 0531/08 is modified to construct a boulder stone retaining wall to the southern and western boundaries of the subject site.' 'Development Consent No. 0531/08 is modified to level the rear yard to provide useable open space with clean fill.' 'Development...