577 New South Head Road Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 526

577 New South Head Road Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 526

The proposed modification was refused because, having regard to condition 96 of the original consent and the comparison between the approved plans and amended s 96 plans, the proposal would be substantially a different development from that originally approved. The significant qualitative change was the extension of built form and excavation closer to the common boundary with 1 Rose Bay Avenue, a heritage property on the high side of a sloping sandy hill, increasing the risk of damage. In any event, even if the proposal were substantially the same, the additional excavation closer to 1 Rose Bay Avenue was an unacceptable method of improving internal amenity and did not warrant approval on...

Jurisdiction
Australia
Judgment Date
21 September 2004
Procedural Posture
Appeal Under S 96 of the Environmental Planning and Assessment Act 1979 Against Refusal to Modify a Development Consent / Judgment After Hearing
Outcome
Appeal dismissed
Legal Topics
['modification of Development Consent' 'substantially the Same Development' 'excavation and Retaining Structures' 'amenity of Adjoining Residents' 'heritage Item Impacts' 'geotechnical Risk']
['planning and Environment Law' 'development Consent' 'heritage' 'land Use Planning'] ['modification of Development Consent' 'substantially the Same Development' 'excavation and Retaining Structures' 'amenity of Adjoining Residents' 'heritage Item Impacts' 'geotechnical Risk']

Case Brief

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Procedural Posture

Appeal Under S 96 of the Environmental Planning and Assessment Act 1979 Against Refusal to Modify a Development Consent / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed modified development was substantially the same development as that for which consent was granted' 'Whether the increased excavation and proposed retention methods might adversely affect the stability of the adjoining property at 1 Rose Bay Avenue' 'Whether the proposed modification would adversely affect the amenity of the adjoining residents at 1 Rose Bay Avenue' 'Whether, if the legal threshold under s 96 was met, the modified development should be approved on the merits having regard to excavation risks and planning controls']

Ratio Decidendi

The proposed modification was refused because, having regard to condition 96 of the original consent and the comparison between the approved plans and amended s 96 plans, the proposal would be substantially a different development from that originally approved. The significant qualitative change was the extension of built form and excavation closer to the common boundary with 1 Rose Bay Avenue, a heritage property on the high side of a sloping sandy hill, increasing the risk of damage. In any event, even if the proposal were substantially the same, the additional excavation closer to 1 Rose Bay Avenue was an unacceptable method of improving internal amenity and did not warrant approval on...

Court Disposition

Appeal dismissed

Orders

  • ['The appeal be dismissed.' 'The exhibits may be returned, other than exhibits A, L and 2.']