Ahmad Corp Pty Ltd v Fairfield City Council [2018] NSWLEC 1526

Ahmad Corp Pty Ltd v Fairfield City Council [2018] NSWLEC 1526

Although the Court was satisfied the proposed modified development was substantially the same as the approved development (thus jurisdiction to consider the modification existed), little weight could be given to the draft urban design study and planning proposal, given uncertainty in finalisation. The prevailing character of the area was defined by the existing 20m/6-storey controls. The application was refused because the proposed seventh storey, amounting to a 38% breach of the height control, did not complement or reflect the character envisaged by the current controls, would set an undesirable precedent, and although overshadowing impacts were minor, the scale and bulk were...

Jurisdiction
Australia
Judgment Date
09 October 2018
Procedural Posture
Modification Application (class 1) / Final Determination – Judgment and Orders
Outcome
Modification application refused
Legal Topics
['modification of Development Consent' 'building Height Controls' 'urban Design and Planning Instruments' 'overshadowing' 'precedent in Planning Law']
['planning and Environment Law'] ['modification of Development Consent' 'building Height Controls' 'urban Design and Planning Instruments' 'overshadowing' 'precedent in Planning Law']

Case Brief

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Procedural Posture

Modification Application (class 1) / Final Determination – Judgment and Orders

Legal Issues

  1. 1 ['Whether the proposed modification is substantially the same development as originally approved' 'What weight should be given to an urban design study and planning proposal versus existing controls' 'Whether the modified development is consistent with the intended character of the area' 'Whether the proposed modification minimises overshadowing and is appropriate in scale, bulk, and height' 'Whether granting the application would set an undesirable precedent']

Ratio Decidendi

Although the Court was satisfied the proposed modified development was substantially the same as the approved development (thus jurisdiction to consider the modification existed), little weight could be given to the draft urban design study and planning proposal, given uncertainty in finalisation. The prevailing character of the area was defined by the existing 20m/6-storey controls. The application was refused because the proposed seventh storey, amounting to a 38% breach of the height control, did not complement or reflect the character envisaged by the current controls, would set an undesirable precedent, and although overshadowing impacts were minor, the scale and bulk were...

Court Disposition

Modification application refused

Orders

  • ['The application to modify the development consent for the construction of a 6-storey mixed use development at 882-890 Woodville Road and 3-5 Howatt Street, Villawood, by adding one additional level comprising 12 residential units, is refused.' 'The exhibits are returned, except for Exhibits A, B, 4 and 6.']