Bensen & Partners Pty Ltd v Woollahra Municipal Council [2010] NSWLEC 1193

Bensen & Partners Pty Ltd v Woollahra Municipal Council [2010] NSWLEC 1193

A conditional approval of the modification is warranted where the decorative ledges are constructed in a hollow, non-structural form that prevents use as stairs, and where conditions prohibit use of the garage roof as a terrace, thus addressing privacy and amenity concerns to the satisfaction of the planning controls.

Parties
Applicant: Bensen & Partners Pty Ltd; Respondent: Woollahra Municipal Council
Jurisdiction
Australia
Judgment Date
16 July 2010
Procedural Posture
Appeal / Determination of Appeal Against Refusal of S96 Modification
Outcome
appeal upheld; section 96 modification approved with conditions
Legal Topics
Development Application Modification, Acoustic and Visual Amenity, Use of Roof as Terrace, Heritage Conservation
Planning Law Environmental Law Development Application Modification Acoustic and Visual Amenity Use of Roof as Terrace Heritage Conservation

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Parties

Bensen & Partners Pty Ltd

Applicant

Woollahra Municipal Council

Respondent

Procedural Posture

Appeal / Determination of Appeal Against Refusal of S96 Modification

Legal Issues

  1. 1 Whether the section 96 modification enabling courtyard wall ledges should be approved given concerns over acoustic and visual privacy and potential use of garage roof as terrace.
  2. 2 Whether the decorative ledges constitute a safety risk or facilitate unauthorised use as stairs.
  3. 3 Whether the proposal complies with Woollahra LEP 1995 and Heritage Conservation Area DCP 2003.

Ratio Decidendi

A conditional approval of the modification is warranted where the decorative ledges are constructed in a hollow, non-structural form that prevents use as stairs, and where conditions prohibit use of the garage roof as a terrace, thus addressing privacy and amenity concerns to the satisfaction of the planning controls.

Court Disposition

appeal upheld; section 96 modification approved with conditions

Orders

  • The appeal is upheld.
  • The section 96 modification for alterations concerning the courtyard wall artistic feature at 92 Fletcher Street, Woollahra is approved subject to the condition in Annexure A.