Thomas v Warringah Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Thomas v Warringah Council [2013] NSWLEC 1065

Hearing dates:

11 April 2013

Decision date:

19 April 2013

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. The appeal is upheld.

2. Development Application No. 2012/1411 for the demolition of existing structures and construction of a new dwelling house and pool at 14 Gardere Ave, Curl Curl is approved, subject to the conditions in Annexure 'A'.

3. The exhibits, other than exhibits 2 and A, are returned.

Catchwords:

DEVELOPMENT APPLICATION - new dwelling and pool, resident objectors

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Cases Cited:

Futurespace Pty Ltd v Ku-ring-gai [2009] NSWLEC 153

Category:

Principal judgment

Parties:

Mr Stuart Thomas (Applicant)
Warringah Council (Respondent)

Representation:

Mr N Eastman (Applicant)
Mr S Patterson (Respondent)
Gadens Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

10041 of 2013

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 2012/1411 (the proposal) by Warringah Council (the Council) for a new dwelling and pool, at 14 Gardere Ave, Curl Curl (the site).

1. The appeal was subject to mandatory conciliation on 11 April 2013, in accordance with the provisions of s34AA of the Land and Environment Court Act 1979.

1. Agreement was reached between the parties during the conciliation conference on the basis of amendments made to the proposal following the joint conferencing of the planning experts. The parties agree that the proposal is substantially unchanged by the amendments, however Council requested that the conciliation conference be adjourned to allow for objectors to be notified of the amended proposal, in accordance with clause A.7 of the Warringah Development Control Plan (WDCP), on the basis that the amendments made to the proposal are not 'minor'.

1. Clause A.7 of WDCP includes the following regarding the notification of amended development applications:

Notification of amended development applications where the development is substantially unchanged

Amended or substituted applications will be notified / advertised in the same manner as the original application and to each person who made a submission to the original application.

· Amended or substituted applications will be notified / advertised in the same manner as the original application and to each person who made a submission to the original application.

· If a development application is amended or substituted, and

· Council has notified/advertised the original application, and

· Council is of the opinion that the amended or substituted application differs only in minor respects from the original application, and does not result in a greater environmental impact,

· Council may decide to dispense with further notification/advertising in relation to the amended or substituted application at the discretion of the officer responsible for the management of development assessment. Amended or substituted applications that require notification/advertising will be notified and advertised in the same manner as the original application and to each person who made…