Bassett & Jones Architects v Waverley Council [2006] NSWLEC 69

Bassett & Jones Architects v Waverley Council [2006] NSWLEC 69

The appeal was dismissed because, although the Court had power to approve a s 96 modification despite breaches of the WLEP floor space ratio and height standards and the proposal was not refused for SEPP65, privacy or acoustic reasons, the increased height, increased bulk, and nil side setbacks would cause unacceptable amenity impacts. Those impacts included an overbearing effect on adjoining residents, adverse streetscape impact from the visible fourth floor, additional overshadowing, and unreasonable loss of daylight to adjoining windows, particularly at No 127 Macpherson Street.

Jurisdiction
Australia
Judgment Date
21 February 2006
Procedural Posture
Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Modification Application Lodged Under S 96 AA / Judgment
Outcome
Appeal dismissed; modification application refused consent.
Legal Topics
['modification Application' 'floor Space Ratio' 'building Height' 'amenity Impacts' 'side Setbacks' 'streetscape' 'overshadowing' 'state Environmental Planning Policy No. 65']
['planning and Environment Law' 'development Consent'] ['modification Application' 'floor Space Ratio' 'building Height' 'amenity Impacts' 'side Setbacks' 'streetscape' 'overshadowing' 'state Environmental Planning Policy No. 65']

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Procedural Posture

Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Modification Application Lodged Under S 96 AA / Judgment

Legal Issues

  1. 1 ['Whether the proposed modification was substantially the same development as the development for which consent was originally granted' 'Whether non-compliance with floor space ratio controls justified refusal' 'Whether non-compliance with the height control and the proposed fourth storey would adversely affect the streetscape' 'Whether nil side setbacks and increased bulk would cause adverse amenity impacts, including overshadowing and loss of daylight to adjoining properties' 'Whether the proposal should be refused for alleged non-compliance with State Environmental Planning Policy No. 65 concerning internal amenity' 'Whether privacy and acoustic impacts from elevated courtyards and open space warranted refusal']

Ratio Decidendi

The appeal was dismissed because, although the Court had power to approve a s 96 modification despite breaches of the WLEP floor space ratio and height standards and the proposal was not refused for SEPP65, privacy or acoustic reasons, the increased height, increased bulk, and nil side setbacks would cause unacceptable amenity impacts. Those impacts included an overbearing effect on adjoining residents, adverse streetscape impact from the visible fourth floor, additional overshadowing, and unreasonable loss of daylight to adjoining windows, particularly at No 127 Macpherson Street.

Court Disposition

Appeal dismissed; modification application refused consent.

Orders

  • ['The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is dismissed.' 'Modification application lodged on 18 May 2005 with Waverley Council under s 96AA of the Environmental Planning and Assessment Act 1979, in respect of development consent granted by the Court on 24 February 2005 [Matter...