Russo v Northern Beaches Council [2020] NSWLEC 1259

Russo v Northern Beaches Council [2020] NSWLEC 1259

The existing fence was not exempt development, was unauthorised, excessive in height, insufficiently screened, and obstructed wildlife passage, so the development control order was validly issued and should only be modified as to time for compliance. The development application was refused because there was insufficient information to satisfy mandatory preconditions under s 4.14 of the Environmental Planning and Assessment Act 1979 and cll 7.6(4) and 7.7(4) of Pittwater Local Environmental Plan 2014, and because the proposed front fence did not achieve the outcomes and controls in D8.10 of Pittwater 21 Development Control Plan or the established open vegetated character of the locality.

Jurisdiction
Australia
Judgment Date
18 June 2020
Procedural Posture
Class 1 Appeal Under Ss 8.18 and 8.7(1) of the Environmental Planning and Assessment Act 1979 / Hearing After Termination of S 34 Conciliation Conference
Outcome
The appeal against the development control order was upheld and the order was modified only to extend the compliance period; the appeal against the deemed refusal of the development application was dismissed and the development application was refused.
Legal Topics
['development Control Order to Demolish Front Fence' 'deemed Refusal of Development Application' 'bush Fire Prone Land' 'biodiversity and Geotechnical Hazard Preconditions' 'development Control Plan Controls for Fences' 'streetscape and Locality Character']
['planning and Environment Law' 'development Control' 'local Environmental Planning'] ['development Control Order to Demolish Front Fence' 'deemed Refusal of Development Application' 'bush Fire Prone Land' 'biodiversity and Geotechnical Hazard Preconditions' 'development Control Plan Controls for Fences' 'streetscape and Locality Character']

Case Brief

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Procedural Posture

Class 1 Appeal Under Ss 8.18 and 8.7(1) of the Environmental Planning and Assessment Act 1979 / Hearing After Termination of S 34 Conciliation Conference

Legal Issues

  1. 1 ['Whether Development Control Order No. EPA2018/0279 should be endorsed or modified.' 'Whether the Court could be satisfied of the jurisdictional preconditions in s 4.14 of the Environmental Planning and Assessment Act 1979 and cll 7.6(4) and 7.7(4) of Pittwater Local Environmental Plan 2014 before granting development consent.' 'Whether the proposed front fence achieved the outcomes and controls for fences in D8.10 of Pittwater 21 Development Control Plan.' 'Whether the proposed fence was compatible with the character of Scotland Island and Robertson Road.']

Ratio Decidendi

The existing fence was not exempt development, was unauthorised, excessive in height, insufficiently screened, and obstructed wildlife passage, so the development control order was validly issued and should only be modified as to time for compliance. The development application was refused because there was insufficient information to satisfy mandatory preconditions under s 4.14 of the Environmental Planning and Assessment Act 1979 and cll 7.6(4) and 7.7(4) of Pittwater Local Environmental Plan 2014, and because the proposed front fence did not achieve the outcomes and controls in D8.10 of Pittwater 21 Development Control Plan or the established open vegetated character of the locality.

Court Disposition

The appeal against the development control order was upheld and the order was modified only to extend the compliance period; the appeal against the deemed refusal of the development application was dismissed and the development application was refused.

Orders

  • ['The appeal against Development Control Order No. EPA2018/0279 relating to the premises at 57 Robertson Road, Scotland Island, is upheld.' 'Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 (NSW), Development Control Order No. EPA2018/0279 is modified to amend the time period for...