Meck v Waverley Council (2) [2005] NSWLEC 363

Meck v Waverley Council (2) [2005] NSWLEC 363

The modified development was substantially the same as the approved dual occupancy development because council had already approved the height, external bulk and relationship of the building to the ground through the architectural and landscape approvals, and the remaining external changes, including doors and windows at the subfloor level, did not significantly alter the building's external appearance. Use of the basement would not change the essential residential use, add additional dwellings, or create amenity impacts beyond those reasonably expected of a residential development. Although the FSR exceedance and bulk were substantial, the bulk and scale had effectively already been...

Jurisdiction
Australia
Judgment Date
06 July 2005
Procedural Posture
Appeal Against Refusal by Waverley Municipal Council of an Application Under S96 of the Environmental Planning and Assessment Act 1979 to Modify Development Consent Da562/2002 / Judgment and Orders After Hearing
Outcome
Appeal upheld; s96 application approved; development consent DA562/2002 amended in accordance with Schedule A; no order as to costs.
Legal Topics
['section 96 Modification Application' 'substantially the Same Development' 'floor Space Ratio and Bulk' 'visual and Energy Efficiency Impacts' 'residential Amenity' 'planning Precedent']
['environmental Planning and Assessment' 'development Consent Modification' 'land Use Planning'] ['section 96 Modification Application' 'substantially the Same Development' 'floor Space Ratio and Bulk' 'visual and Energy Efficiency Impacts' 'residential Amenity' 'planning Precedent']

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Procedural Posture

Appeal Against Refusal by Waverley Municipal Council of an Application Under S96 of the Environmental Planning and Assessment Act 1979 to Modify Development Consent Da562/2002 / Judgment and Orders After Hearing

Legal Issues

  1. 1 ['Whether the proposal is substantially the same development as the development for which consent was granted.' 'Whether the proposed basement level results in excessive floor space and bulk that would have unacceptable visual and energy efficiency impacts.' 'Whether the proposal will set an undesirable precedent.']

Ratio Decidendi

The modified development was substantially the same as the approved dual occupancy development because council had already approved the height, external bulk and relationship of the building to the ground through the architectural and landscape approvals, and the remaining external changes, including doors and windows at the subfloor level, did not significantly alter the building's external appearance. Use of the basement would not change the essential residential use, add additional dwellings, or create amenity impacts beyond those reasonably expected of a residential development. Although the FSR exceedance and bulk were substantial, the bulk and scale had effectively already been...

Court Disposition

Appeal upheld; s96 application approved; development consent DA562/2002 amended in accordance with Schedule A; no order as to costs.

Orders

  • ['The appeal is upheld.' 'The s96 application to modify the Development Consent DA562/2002 to construct a dual occupancy development at 12 St Thomas Street, Bronte, is approved and the consent is amended in accordance with Schedule A.' "Within a time period agreed between the parties, the Applicant is to submit a...