Sky Design and Concepts Pty Ltd v Pittwater Council [2007] NSWLEC 628

Sky Design and Concepts Pty Ltd v Pittwater Council [2007] NSWLEC 628

The modification was allowable because it related to substantially the same development, notification had occurred, and the remaining impacts could be managed by conditions requiring limited fill removal within 1 m of existing tree trunks, suitable mulch, four new Council-approved trees in the waterfront area, wildlife openings in the rear fence, and safe maintenance of the road shoulder retaining structures.

Jurisdiction
Australia
Judgment Date
28 September 2007
Procedural Posture
Section 96 Modification Appeal Concerning Development Consent for a Dwelling House / Judgment After Hearing
Outcome
Appeal allowed; s 96 modification allowed subject to conditions in Annexure A.
Legal Topics
['section 96 Modification' 'development Consent Conditions' 'waterfront Embankment Fill' 'tree Protection' 'wildlife Corridor' 'retaining Structures']
['planning and Environment Law'] ['section 96 Modification' 'development Consent Conditions' 'waterfront Embankment Fill' 'tree Protection' 'wildlife Corridor' 'retaining Structures']

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Procedural Posture

Section 96 Modification Appeal Concerning Development Consent for a Dwelling House / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the s 96 modification related to substantially the same development and objectors had been notified.' 'Whether fill on the waterfront embankment should be removed to protect existing Swamp Oaks.' 'Whether replacement planting of Swamp Oaks or other approved trees should be required on the waterfront embankment.' 'Whether openings should be provided under rear boundary fencing to maintain a wildlife corridor.' 'Whether timber retaining structures on the road shoulder should be removed or retained.']

Ratio Decidendi

The modification was allowable because it related to substantially the same development, notification had occurred, and the remaining impacts could be managed by conditions requiring limited fill removal within 1 m of existing tree trunks, suitable mulch, four new Council-approved trees in the waterfront area, wildlife openings in the rear fence, and safe maintenance of the road shoulder retaining structures.

Court Disposition

Appeal allowed; s 96 modification allowed subject to conditions in Annexure A.

Orders

  • ['The appeal is allowed.' 'The s 96 Modification to DA No 442/05 for the construction of a dwelling house, driveway and car parking platform at 220 McCarrs Creek Road, Church Point is allowed, subject to the conditions in Annexure A.' 'The exhibits may be returned except for 2, 6, 9 and A.']