Urbanesque Planning Pty Ltd v Ku-ring-gai Council [2011] NSWLEC 1142

Urbanesque Planning Pty Ltd v Ku-ring-gai Council [2011] NSWLEC 1142

The modification application was substantially the same development as originally approved because the changes were minor and the land to which the consent related remained the same two-lot site. However, condition 41 requiring consolidation was reasonably imposed because the approved development relied on the combined site area of Lots Y and C to satisfy DCP38 controls, and consolidation would formalise that basis and promote the orderly and economic development of the land. Condition 13 should be replaced because clause 4.1.5 of DCP38 did not mandate a 1.2 metre maximum height and the amended visually transparent fence of up to 1.5 metres met the streetscape assessment criteria.

Jurisdiction
Australia
Judgment Date
26 May 2011
Procedural Posture
Class 1 Appeal Pursuant to S 96(6) of the Environmental Planning & Assessment Act 1979 Against Refusal of a S 96 Modification Application / Principal Judgment After S 34 Conciliation Conference Was Terminated and the Matter Proceeded to Hearing
Outcome
Appeal upheld in part; modification application allowed subject to conditions.
Legal Topics
['modification Application' 'substantially the Same Development' 'development Consent Conditions' 'front Fence Height and Streetscape Character' 'consolidation of Torrens Title Lots' 'orderly and Economic Use and Development of Land']
['planning and Environment Law' 'development Consent Modification' 'land Use and Development Control'] ['modification Application' 'substantially the Same Development' 'development Consent Conditions' 'front Fence Height and Streetscape Character' 'consolidation of Torrens Title Lots' 'orderly and Economic Use and Development of Land']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 96(6) of the Environmental Planning & Assessment Act 1979 Against Refusal of a S 96 Modification Application / Principal Judgment After S 34 Conciliation Conference Was Terminated and the Matter Proceeded to Hearing

Legal Issues

  1. 1 ['Whether the proposed front fence was acceptable within the streetscape of Karranga Avenue having regard to clause 4.1.5 of DCP38.' 'Whether the modification application satisfied s 96(1A)(b) of the Environmental Planning & Assessment Act 1979 because the development as modified was substantially the same development as originally approved.' 'Whether condition 41 requiring consolidation of Lot Y and Lot C should remain to promote the orderly and economic use and development of land.' 'Whether the retention of two lots, rather than consolidation, would undermine compliance with DCP38 controls into the future.']

Ratio Decidendi

The modification application was substantially the same development as originally approved because the changes were minor and the land to which the consent related remained the same two-lot site. However, condition 41 requiring consolidation was reasonably imposed because the approved development relied on the combined site area of Lots Y and C to satisfy DCP38 controls, and consolidation would formalise that basis and promote the orderly and economic development of the land. Condition 13 should be replaced because clause 4.1.5 of DCP38 did not mandate a 1.2 metre maximum height and the amended visually transparent fence of up to 1.5 metres met the streetscape assessment criteria.

Court Disposition

Appeal upheld in part; modification application allowed subject to conditions.

Orders

  • ['The appeal against condition 13 is upheld in part. Condition 13 in the original consent for DA0243/10 is to be replaced with the condition as written in [49]. Condition 1 is to be amended accordingly by referencing the plan title, author and date in the table of approved architectural plans and documentation.'...