Bocce Pty Ltd v Woollahra Municipal Council (No 3) [2013] NSWLEC 1249

Bocce Pty Ltd v Woollahra Municipal Council (No 3) [2013] NSWLEC 1249

The Court approved the modification application because the amended plans reduced and articulated the upper-level balcony and roof, softened the garage and frontage through lowered form and landscaping, improved streetscape presentation, and were consistent with the relevant LEP objectives and DCP objectives. Although numerical and performance-criteria departures remained, including for the garage location, balcony articulation, FSR and setbacks, the totality of the modified development provided an acceptable outcome consistent with the Residential A zone objective and relevant planning controls.

Jurisdiction
Australia
Judgment Date
20 December 2013
Procedural Posture
Class 1 Appeal Under S97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application Under S 96 AA to Modify Development Consent Da706/2010 / Final Determination After Proceedings Were Re Opened for Further Engineering and Planning Evidence
Outcome
Appeal upheld; Modification Application No. 706/2010/1 approved subject to conditions.
Legal Topics
['development Modification' 'residential Dwelling Development Consent' 'woollahra Local Environmental Plan 1995' 'development Control Plan Departures' 'streetscape, Bulk and Scale' 'garage Relocation' 'heritage Setting']
['planning and Environment Law'] ['development Modification' 'residential Dwelling Development Consent' 'woollahra Local Environmental Plan 1995' 'development Control Plan Departures' 'streetscape, Bulk and Scale' 'garage Relocation' 'heritage Setting']

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Procedural Posture

Class 1 Appeal Under S97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application Under S 96 AA to Modify Development Consent Da706/2010 / Final Determination After Proceedings Were Re Opened for Further Engineering and Planning Evidence

Legal Issues

  1. 1 ['Whether Modification Application No. 706/2010/1 should be approved in the amended form shown in exhibit S.' 'Whether the amended modifications were consistent with the relevant objectives of the Woollahra Local Environmental Plan 1995 and the Woollahra Residential Development Control Plan.' 'Whether departures from DCP performance criteria concerning garage location, floor space ratio, building articulation and setbacks should be accepted.' 'Whether the amended garage design, landscaping, balcony and roof cutbacks adequately addressed streetscape, bulk, scale, privacy and heritage-setting impacts.']

Ratio Decidendi

The Court approved the modification application because the amended plans reduced and articulated the upper-level balcony and roof, softened the garage and frontage through lowered form and landscaping, improved streetscape presentation, and were consistent with the relevant LEP objectives and DCP objectives. Although numerical and performance-criteria departures remained, including for the garage location, balcony articulation, FSR and setbacks, the totality of the modified development provided an acceptable outcome consistent with the Residential A zone objective and relevant planning controls.

Court Disposition

Appeal upheld; Modification Application No. 706/2010/1 approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'Modification Application No. 706/2010/1 is approved subject to the conditions incorporated in the consolidated, modified conditions of development consent set out in Annexure A.']