Walter Elliott Holdings Pty Ltd v Tweed Shire Council [2011] NSWLEC 1383

Land and Environment Court New South Wales

Medium Neutral Citation: Walter Elliott Holdings Pty Ltd v Tweed Shire Council [2011] NSWLEC 1383 Hearing dates: 19 December 2011 Decision date: 19 December 2011 Jurisdiction: Class 1 Before: Hussey C Decision: Appeal upheld Catchwords: Development modification: placement of additional fill material to create higher building platform, land situated in flood - liable area, drainage easement Legislation Cited: Environmental Planning and Assessment Act 1979 Tweed Local Environmental Plan 2000 Tweed Shire Development Control Plan Cases Cited: Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53 Category: Principal judgment Parties: Walter Elliott Holdings Pty Ltd (Applicant)

Tweed Shire Council (Respondent) Representation: Counsel Mr C Gough (Applicant)

Mr S Simmington (Respondent) Solicitors Storey & Gough (Applicant)

Lindsay Taylor Lawyers (Respondent) File Number(s): 10924 of 2011

Judgment

Background 1This appeal was lodged against council's refusal of a s96 application to modify a development consent to increase the amount of filling on the site to form a building platform for a new dwelling at 6 Creek Street, Hastings Point. The land is situated in a flood-liable area. 2The original three bedroom, two storey dwelling was approved with a ground floor habitable level of 2.7 m AHD and no filling. A subsequent modification was granted to allow placement of 400 mm of fill on the site and to change the design to a 'concrete slab on ground'. 3When the filling was undertaken an additional depth of approximately 300mm was placed on the site, together with the fill covering a larger area. Consequently, the current application is to regularise this additional filling associated retaining wall and dish drain. 4As the property is low-lying and backs onto a creek that is flood-liable, the application was refused on the basis that the fill would not preserve overland flow paths and likely cause adverse impacts in the local area. A number of objections were lodged against the proposal.