McKirdy v Hunters Hill Municipal Council [2005] NSWLEC 200

McKirdy v Hunters Hill Municipal Council [2005] NSWLEC 200

The s 96 modification was approved because, assessed on its merits and by reference to the relevant s 79C matters and council planning controls, the enlarged basement parking and associated excavation would not cause environmental impacts warranting refusal. The Court was not persuaded that the proposal would interfere with natural topography or landform, be antipathetic to the Development Control Plan objectives, cause unacceptable drainage impacts, harm retained vegetation if conditioned appropriately, or create an undesirable precedent. The proposal complied with the statutory LEP controls and could be approved subject to conditions.

Jurisdiction
Australia
Judgment Date
20 April 2005
Procedural Posture
Appeal Under S 96 of the Environmental Planning and Assessment Act Against Refusal of an Application to Modify a Development Consent / Ex Tempore Judgment Following on Site Hearing
Outcome
Appeal upheld; s 96 modification application approved subject to conditions.
Legal Topics
['section 96 Modification Application' 'basement Parking' 'excavation and Cut and Fill' 'drainage Impacts' 'development Control Plan Compliance' 'heritage Conservation Area' 'planning Certainty and Development by Creep']
['planning and Environment Law' 'development Consent Modification'] ['section 96 Modification Application' 'basement Parking' 'excavation and Cut and Fill' 'drainage Impacts' 'development Control Plan Compliance' 'heritage Conservation Area' 'planning Certainty and Development by Creep']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the s 96 application to enlarge the basement parking area and amend fencing details should be approved.' 'Whether the proposed modification was consistent with the Hunters Hill planning controls, including Development Control Plan No. 15 and the Hunters Hill LEP.' 'Whether the additional excavation and basement parking would adversely affect natural landform, vegetation, streetscape, drainage, adjoining properties or heritage context.' 'Whether approval would create an undesirable precedent or undermine certainty in the planning process.']

Ratio Decidendi

The s 96 modification was approved because, assessed on its merits and by reference to the relevant s 79C matters and council planning controls, the enlarged basement parking and associated excavation would not cause environmental impacts warranting refusal. The Court was not persuaded that the proposal would interfere with natural topography or landform, be antipathetic to the Development Control Plan objectives, cause unacceptable drainage impacts, harm retained vegetation if conditioned appropriately, or create an undesirable precedent. The proposal complied with the statutory LEP controls and could be approved subject to conditions.

Court Disposition

Appeal upheld; s 96 modification application approved subject to conditions.

Orders

  • ['The appeal in respect of the property known as 3 Passy Avenue, Hunters Hill, is upheld.' 'The s 96 application to modify the consent issued by Hunters Hill Municipal Council is approved subject to the conditions contained in Annexure A.' 'The exhibits are returned with the exception of Exhibit B and the conditions.']