Renaldo Plus 3 Pty Limited v Hurstville City Council (No. 4) [2006] NSWLEC 819

Renaldo Plus 3 Pty Limited v Hurstville City Council (No. 4) [2006] NSWLEC 819

The modification could be approved by consent orders because the internal redistribution of uses was not opposed, the acoustic concern from ventilation grilles was resolved by extending mechanical ventilation ducting instead of installing grilles, landscaping impacts from the fire escape pathway could be addressed by an open mesh or similar permeable path and revised landscaping, and the unresolved legal right of way issue could be managed by a condition requiring the applicant to satisfy the council that emergency fire access over the right of way could be achieved.

Jurisdiction
Australia
Judgment Date
22 December 2006
Procedural Posture
Appeal Against Refusal of an Application to Modify Development Consent / Final Consent Orders
Outcome
Appeal upheld; development consent amended by consent.
Legal Topics
['modification of Development Consent' 'mixed Commercial Retail and Residential Development' 'fire Escape Access' 'ventilation Grilles' 'landscaping' 'right of Way' 'building Code of Australia Compliance']
['planning and Environment Law'] ['modification of Development Consent' 'mixed Commercial Retail and Residential Development' 'fire Escape Access' 'ventilation Grilles' 'landscaping' 'right of Way' 'building Code of Australia 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 Refusal of an Application to Modify Development Consent / Final Consent Orders

Legal Issues

  1. 1 ['Whether development consent DA 20040454 should be modified to relocate supermarket staff amenities and administration areas and create separately lettable commercial space.' 'Whether proposed ventilation grilles in the rear wall facing the southern boundary should be permitted given acoustic impacts on the adjoining residential property.' 'Whether an additional fire escape pathway through the rear landscaped area would unacceptably reduce landscaping and screening.' 'Whether persons using the proposed emergency fire escape had legal access over the existing right of way to Waratah Street so as to satisfy cl D1.10 of the Building Code of Australia.']

Ratio Decidendi

The modification could be approved by consent orders because the internal redistribution of uses was not opposed, the acoustic concern from ventilation grilles was resolved by extending mechanical ventilation ducting instead of installing grilles, landscaping impacts from the fire escape pathway could be addressed by an open mesh or similar permeable path and revised landscaping, and the unresolved legal right of way issue could be managed by a condition requiring the applicant to satisfy the council that emergency fire access over the right of way could be achieved.

Court Disposition

Appeal upheld; development consent amended by consent.

Orders

  • ['The appeal is upheld.' "Development consent DA 20040454 and conditions imposed in appeal 11591 of 2004 is amended pursuant to s. 96 of the Environmental Planning and Assessment Act as set out in the Annexure marked 'A'." 'The exhibits are returned']