Wassef v Ku-ring-gai Council (1) [2007] NSWLEC 843

Wassef v Ku-ring-gai Council (1) [2007] NSWLEC 843

The modification to extend the family room, reduce the approved deck, rely on under croft open space and construct a concrete footpath was refused because there was no evidence or changed circumstance justifying departure from the earlier approved balance between development and site constraints; the under croft area was unlikely to be suitable as the primary open space due to flooding, riparian zone, stability, solar access, access and overlooking issues; and the concrete footpath would unacceptably reduce landscaping, soil stabilisation and water absorption in the approved landscape strip. The water tank and carport roof pitch changes were acceptable subject to conditions.

Jurisdiction
Australia
Judgment Date
05 December 2007
Procedural Posture
Appeal Against Part Refusal of an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent / Ex Tempore Judgment After Hearing
Outcome
Appeal dismissed in part and consent granted in part to modify the development consent.
Legal Topics
['section 96 Modification Application' 'private Open Space Amenity' 'riparian Zone Impacts' 'flooding and Stability' 'residential Development Bulk and Landscape Screening' 'development Control Plan Compliance']
['planning and Environment' 'development Consent Modification' 'land Use Planning'] ['section 96 Modification Application' 'private Open Space Amenity' 'riparian Zone Impacts' 'flooding and Stability' 'residential Development Bulk and Landscape Screening' 'development Control Plan Compliance']

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

Appeal Against Part Refusal of an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether consent should be modified to extend the ground floor family room, reducing the approved deck area and relying on the under croft area as the principal open space for the dwelling.' 'Whether the proposed under croft open space provided adequate amenity and could be assessed having regard to flooding, riparian zone, stability, solar access and access from living areas.' 'Whether approval should be granted for a concrete footpath along the western boundary given its impacts on landscaping, soil stabilisation, water absorption and the approved landscape strip.' 'Whether changes to replace a partial underground water tank with an above ground tank and amend the carport roof pitch should be approved subject to conditions.']

Ratio Decidendi

The modification to extend the family room, reduce the approved deck, rely on under croft open space and construct a concrete footpath was refused because there was no evidence or changed circumstance justifying departure from the earlier approved balance between development and site constraints; the under croft area was unlikely to be suitable as the primary open space due to flooding, riparian zone, stability, solar access, access and overlooking issues; and the concrete footpath would unacceptably reduce landscaping, soil stabilisation and water absorption in the approved landscape strip. The water tank and carport roof pitch changes were acceptable subject to conditions.

Court Disposition

Appeal dismissed in part and consent granted in part to modify the development consent.

Orders

  • ['The appeal is dismissed in relation to the extension of the family room, the construction of a concrete footpath on the western boundary and the provision of open space in the under croft below the dwelling and forward of the front building line at 21 Rothwell Road, Turramurra.' 'Consent is granted to modify...