NSW Caselaw
Land and Environment Court of New South Wales
CITATION : Kearvall & Clark v Pittwater Council [2009] NSWLEC 1111
APPLICANT D Kearvall & J Clark PARTIES : RESPONDENT Pittwater Council
FILE NUMBER(S) : 11022 of 2008
CORAM: Hussey C
KEY ISSUES: DEVELOPMENT APPLICATION - SECTION 96 MODIFICATION :- for enclosure of carport in flood-liable land, amount of openness of carport.
LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Pittwater Local Environmental Plan 1993
DATES OF HEARING: 25/02/2009
DATE OF JUDGMENT: 22 April 2009
APPLICANT Ms B. Phelan, solicitor of Mallesons Stephen Jaques
LEGAL REPRESENTATIVES: RESPONDENT Mr A. Murrell, solicitor of Staunton & Thompson Lawyers
JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
Hussey C
22 April 2009
11022 of 2008 D Kearvall & J Clark v Pittwater Council
JUDGMENT Background 1 This appeal was lodged against council's refusal of a section 96 application to modify a development consent to permit enclosure of a car port at 16 Lake Road, North Narrabeen. This area is low-lying and subject to flooding impacts.
2 In 2004 the development consent was granted for the demolition of an existing dwelling on the site and the construction of a new 2-storey dwelling with carport underneath. The conditions of consent included: (a) D45 – the floor level of the dwelling is to be suspended on open pier construction to allow free flow of storm or flood water beneath the dwelling; and (b) D127 – the carport, porch and balconies are not to be further enclosed without prior Development Consent. 3 The modification involved the enclosure of the western wall by: o The construction of a brick rendered, or panelled wall along the western side of the ground floor to provide additional enclosure of this area. o The subsequent insertion of 3 louvres in this wall with 2 m width x 2.3 m height, over which are 0.5m high-lite windows. o The 1m stepped section is to remain open. 4 Council contends that the application involving a significant enclosure of the carport does not comply with the flood risk management policy, which requires a satisfactory level of openness for car park areas and carports below the flood planning level.
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