258 Crows Nest Development Pty Ltd v North Sydney Council [2006] NSWLEC 420

258 Crows Nest Development Pty Ltd v North Sydney Council [2006] NSWLEC 420

The modification was substantially the same development as the approved development, and the additional impacts on neighbouring amenity from the height breach, including light, ventilation, outlook, overshadowing and daylight impacts, were minimal or reasonable when compared with the approved development. The proposal met the objectives of the height control and did not warrant refusal.

Jurisdiction
Australia
Judgment Date
12 July 2006
Procedural Posture
Appeal Against the Deemed Refusal of an Application Under S96 AA of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent / Judgment After Hearing
Outcome
Appeal upheld; development approval modified.
Legal Topics
['s96 AA Modification Application' 'substantially the Same Development' 'building Height Control' 'amenity Impacts' 'overshadowing and Daylight Access' 'sepp 1 Objection']
['planning and Environment Law' 'development Consent Modification' 'local Environmental Planning Controls'] ['s96 AA Modification Application' 'substantially the Same Development' 'building Height Control' 'amenity Impacts' 'overshadowing and Daylight Access' 'sepp 1 Objection']

Case Brief

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Procedural Posture

Appeal Against the Deemed Refusal of an Application Under S96 AA of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the modified development was substantially the same development as the development originally granted consent.' 'Whether the amenity impacts on units 603 and 604, 250 Pacific Highway were reasonable given the breach of the height control.' 'Whether loss of light and ventilation to the light well at 250 Pacific Highway warranted refusal.']

Ratio Decidendi

The modification was substantially the same development as the approved development, and the additional impacts on neighbouring amenity from the height breach, including light, ventilation, outlook, overshadowing and daylight impacts, were minimal or reasonable when compared with the approved development. The proposal met the objectives of the height control and did not warrant refusal.

Court Disposition

Appeal upheld; development approval modified.

Orders

  • ['The appeal is upheld.' 'The application under s96AA to modify the approved development (DA 1010/01/5) to provide an additional residential unit on the approved roof terrace level at 258 Pacific Highway, Crows Nest, is approved. The consent is amended as set out in Annexure "A".' 'The exhibits, except exhibits 4,...