Waks v Marrickville No.2 [2004] NSWLEC 132

Waks v Marrickville No.2 [2004] NSWLEC 132

The development application was refused because hydrological data showed a one in one hundred year flood level of RL18.8 metres AHD, requiring a minimum floor level of 19.1 metres AHD with 300 mm freeboard, while the proposed ground floor levels of RL17.14 metres and RL17.76 metres were substantially below that level and therefore unacceptable. The amended plans were provided too late and would likely involve a design so different that it should not be determined in these proceedings, and the existing design should not be approved merely by conditions requiring compliance with flood level requirements.

Jurisdiction
Australia
Judgment Date
09 March 2004
Procedural Posture
Appeal Against Refusal of Development Application 200300491 for the Erection of Three Attached Two Storey Dwelling Houses at 10 Davies Street, Dulwich Hill / Judgment
Outcome
Appeal dismissed and development application refused.
Legal Topics
['development Application' 'flooding' 'residential Development' 'floor Levels' 'amended Plans']
['planning and Environment' 'development Consent'] ['development Application' 'flooding' 'residential Development' 'floor Levels' 'amended Plans']

Case Brief

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Procedural Posture

Appeal Against Refusal of Development Application 200300491 for the Erection of Three Attached Two Storey Dwelling Houses at 10 Davies Street, Dulwich Hill / Judgment

Legal Issues

  1. 1 ['Whether flooding of the site prevented the grant of development consent for the proposed three attached two-storey dwellings.' 'Whether amended plans tendered late in the proceedings should be accepted into evidence.' 'Whether the present design could be conditioned within a development consent to meet flood level requirements.']

Ratio Decidendi

The development application was refused because hydrological data showed a one in one hundred year flood level of RL18.8 metres AHD, requiring a minimum floor level of 19.1 metres AHD with 300 mm freeboard, while the proposed ground floor levels of RL17.14 metres and RL17.76 metres were substantially below that level and therefore unacceptable. The amended plans were provided too late and would likely involve a design so different that it should not be determined in these proceedings, and the existing design should not be approved merely by conditions requiring compliance with flood level requirements.

Court Disposition

Appeal dismissed and development application refused.

Orders

  • ['The appeal is dismissed and the development application is refused.' 'The exhibits may all be retained with the exception of exhibit E.']