B & H Constructions v Parramatta City Council [2006] NSWLEC 204

B & H Constructions v Parramatta City Council [2006] NSWLEC 204

The s96 application was refused because the constructed upper level changed the approved two storey development with attic rooms into a development presenting as a bulky three storey building. Although overall ridge height had not increased and overshadowing, privacy and amenity impacts were not unacceptable, the altered upper level was not consistent with the height, bulk, scale and Residential 2(b) zone objectives in Parramatta Local Environmental Plan 2001. The unacceptable upper level changes were interlinked with the other proposed modifications, so the other changes could not practically be approved separately under the application before the Court.

Jurisdiction
Australia
Judgment Date
24 April 2006
Procedural Posture
Class 1 Appeal Against Deemed Refusal of a S96 Application to Modify Development Consent / Judgment After Hearing
Outcome
Appeal dismissed and s96 modification application refused.
Legal Topics
['environmental Planning and Assessment Act 1979 S96 Modification' 'multi Unit Housing' 'substantially the Same Development' 'height Controls' 'attic Space and Storeys' 'streetscape Impact' 'parramatta Local Environmental Plan 2001']
['planning and Environment Law' 'development Consent Modification'] ['environmental Planning and Assessment Act 1979 S96 Modification' 'multi Unit Housing' 'substantially the Same Development' 'height Controls' 'attic Space and Storeys' 'streetscape Impact' 'parramatta Local Environmental Plan 2001']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of a S96 Application to Modify Development Consent / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the s96 application related to development substantially the same as the development originally approved.' 'Whether the constructed upper level was an attic or an additional storey under Parramatta Local Environmental Plan 2001.' 'Whether changes to the upper level had an acceptable streetscape impact and were consistent with the objectives and controls for the Residential 2(b) zone.' 'Whether other constructed modifications could be approved separately from the unacceptable upper level changes.']

Ratio Decidendi

The s96 application was refused because the constructed upper level changed the approved two storey development with attic rooms into a development presenting as a bulky three storey building. Although overall ridge height had not increased and overshadowing, privacy and amenity impacts were not unacceptable, the altered upper level was not consistent with the height, bulk, scale and Residential 2(b) zone objectives in Parramatta Local Environmental Plan 2001. The unacceptable upper level changes were interlinked with the other proposed modifications, so the other changes could not practically be approved separately under the application before the Court.

Court Disposition

Appeal dismissed and s96 modification application refused.

Orders

  • ['The appeal is dismissed.' 'The s96 application to modify development consent 923/2002 to construct a multi unit housing development at 718-722 Victoria Road, Ermington is refused.' 'The exhibits may be returned.']