Lark v Shellharbour City Council [2015] NSWLEC 1535

Land and Environment Court New South Wales

Medium Neutral Citation: Lark v Shellharbour City Council [2015] NSWLEC 1535 Hearing dates: 27 October, 7 December 2015 Date of orders: 18 December 2015 Decision date: 18 December 2015 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal dismissed Catchwords: MODIFICATION APPLICATION: Flood prone land; flood planning level; finished floor levels – as conditioned/ as built. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Shellharbour Local Environmental Plan 2013 Cases Cited: Galandon Pty Ltd v Narrabri Shire Council (1983) 51 LGRA Meck v Waverley Council (2) [2005] NSWLEC 363 Moto Projects (No.2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163; (1998) 97 LGERA 433 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Category: Principal judgment Parties: Mitchell Lark (Applicant) Shellharbour City Council (Respondent) Representation: Applicant: Mr M McMahon (Solicitor) Respondent: Mr A Seton (Solicitor)

Solicitors: Applicant: M.E. McMahon & Associates Respondent: Marsdens Law Group File Number(s): 10779 of 2015

Judgment 1. COMMISSIONER: In February 2012 Shellharbour City Council granted consent to Development Application No. 456/2011 for the demolition of an existing garage and construction of a second detached single storey dwelling and Torrens Title subdivision at 20 Arcadia Street, Warilla (the site). Consent was granted subject to the imposition of conditions. 2. The applicant seeks to modify conditions of consent that require all future habitable floors to be constructed to a minimum level of 3.21m Australian Height Datum (AHD) and replace that figure with the as-built levels of 3.03m AHD – 3.05m AHD. A Modification Application 456/2011-2, made pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) was lodged with council on 25 May 2015. 3. The Class 1 Application filed with the court on 4 September 2015 appeals the deemed refusal of that Modification Application. The appeal is made under s 97AA of the EPA Act. The applicant amended the Modification Application and it was eventually approved by council. Despite this, the appeal to the court remains. The relevant background to this matter is discussed from [16]. 4. The matter commenced on site as a mandatory conciliation under s 34AA of the Land and Environment Court Act 1979 (Court Act). As there was no agreement between the parties the conciliation was terminated in accordance with s 34AA(2)(b)(ii) of the Court Act.