Porta v Sydney City Council [2009] NSWLEC 1116

Porta v Sydney City Council [2009] NSWLEC 1116

The Court held that the 500mm side setback was not required because the rear extension would be barely visible or not observed from the public domain, would not overwhelm the public domain, would not adversely affect the heritage conservation area or nearby heritage items, and a variation from the DCP was justified on the merits when the LEP and DCP were read holistically. Allowing the modification would not create an undesirable precedent in the circumstances.

Jurisdiction
Australia
Judgment Date
03 March 2009
Procedural Posture
Appeal Under Section 96(6) of the Environmental Planning and Assessment Act Against Refusal of an Application to Modify a Development Consent / Ex Tempore Judgment
Outcome
Section 96 modification application upheld and approved subject to conditions.
Legal Topics
['modification of Development Consent' 'rear Roof Extension' 'heritage Conservation Area' 'development Control Plan Variation' 'precedent in Merits Assessment']
['planning and Environment Law' 'heritage Conservation' 'development Consent Modification'] ['modification of Development Consent' 'rear Roof Extension' 'heritage Conservation Area' 'development Control Plan Variation' 'precedent in Merits Assessment']

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Procedural Posture

Appeal Under Section 96(6) of the Environmental Planning and Assessment Act Against Refusal of an Application to Modify a Development Consent / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the section 96 modification application should be approved despite non-compliance with the 500mm side setback control in the Sydney City Heritage Development Control Plan 2006.' 'Whether deleting the 500mm setback would adversely impact the heritage conservation area or create an undesirable precedent.' 'Whether the rear extension would be visible from the public domain and whether visibility affected the heritage assessment.' 'Whether strict adherence to a numeric development control plan control was required in the circumstances.']

Ratio Decidendi

The Court held that the 500mm side setback was not required because the rear extension would be barely visible or not observed from the public domain, would not overwhelm the public domain, would not adversely affect the heritage conservation area or nearby heritage items, and a variation from the DCP was justified on the merits when the LEP and DCP were read holistically. Allowing the modification would not create an undesirable precedent in the circumstances.

Court Disposition

Section 96 modification application upheld and approved subject to conditions.

Orders

  • ['The section 96 modification application for the property known as No. 3 Bellevue Street, Surry Hills is upheld.' 'The modification application is approved subject to the conditions in Annexure A. Annexure A is a consolidating set of conditions from the original approval.' 'The exhibits except A may be returned.']