Bocce Pty Ltd v Woollahra Municipal Council (No 2) [2013] NSWLEC 1169

Bocce Pty Ltd v Woollahra Municipal Council (No 2) [2013] NSWLEC 1169

The modifications relating to the garage location, building articulation and front balconies produced unacceptable bulk, scale and presentation, were not justified departures from the relevant DCP performance criteria, were not consistent with cl 2(2)(k)(iii) of the Woollahra Local Environmental Plan 1995 or the Residential "A" zone objective of maintaining amenity and existing characteristics, and therefore could not be approved without further amendment or consideration.

Jurisdiction
Australia
Judgment Date
09 September 2013
Procedural Posture
Class 1 Appeal Under S 97 AA of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of an Application Under S 96 AA to Modify Development Consent Da706/2010 / Principal Judgment; Directions to Be Made
Outcome
Directions to be made; the Court was not satisfied that the modifications relating to the location of the garage, building articulation and front balconies should be approved in their present form.
Legal Topics
['modification of Development Consent' 'residential Dwelling Alterations and Additions' 'streetscape, Bulk and Scale' 'heritage Impact' 'development Control Plan Compliance' 'public Walkway Amenity']
['environmental Planning and Development' 'land and Environment Court Proceedings'] ['modification of Development Consent' 'residential Dwelling Alterations and Additions' 'streetscape, Bulk and Scale' 'heritage Impact' 'development Control Plan Compliance' 'public Walkway Amenity']

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Procedural Posture

Class 1 Appeal Under S 97 AA of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of an Application Under S 96 AA to Modify Development Consent Da706/2010 / Principal Judgment; Directions to Be Made

Legal Issues

  1. 1 ['Whether the development as modified was substantially the same as the development for which consent was granted under s 96AA(1)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed modifications should be approved having regard to the relevant factors in s 79C(1) as required by s 96AA(1A) of the Environmental Planning and Assessment Act 1979.' 'Whether the modified development was consistent with the relevant objectives of the Woollahra Local Environmental Plan 1995 and the Residential "A" zone as required by cl 8(5).' 'Whether the relocation of the garage, changes to front balconies and building articulation, and increased bulk and scale caused unacceptable streetscape, public walkway, privacy or heritage impacts.']

Ratio Decidendi

The modifications relating to the garage location, building articulation and front balconies produced unacceptable bulk, scale and presentation, were not justified departures from the relevant DCP performance criteria, were not consistent with cl 2(2)(k)(iii) of the Woollahra Local Environmental Plan 1995 or the Residential "A" zone objective of maintaining amenity and existing characteristics, and therefore could not be approved without further amendment or consideration.

Court Disposition

Directions to be made; the Court was not satisfied that the modifications relating to the location of the garage, building articulation and front balconies should be approved in their present form.

Orders

  • ['Directions will be made in consultation with the parties to provide an opportunity for Bocce Pty Ltd to consider its position in relation to the location of the garage and make any consequential changes required to the basement level, entry stairs and front landscaping.' 'Directions will be made for changes to the...