Varvaressos v Canterbury City Council [2011] NSWLEC 1137

Varvaressos v Canterbury City Council [2011] NSWLEC 1137

Although the modified proposal was substantially the same development as the original consent, the cumulative increase in floor space, including roofed balcony areas required to be counted under the Code, would produce excessive bulk and scale inconsistent with the character of the locality and the council's planning intent. The merits assessment under the Environmental Planning and Assessment Act 1979 therefore did not support approval of the s 96 modification, and hardship arising from the previous owner's unauthorised construction was given no significant weight.

Jurisdiction
Australia
Judgment Date
26 May 2011
Procedural Posture
Class 1 Appeal Against Refusal of an Application to Modify Development Consent 1080/2003 / Final Judgment After on Site Hearing
Outcome
The appeal was dismissed and the section 96 application to modify development consent 1080/2003 was refused.
Legal Topics
['section 96 Modification Application' 'dwelling House Development' 'floor Space Ratio' 'bulk and Scale' 'streetscape Impact' 'setbacks' 'building Height']
['planning and Environment Law' 'development Consent Modification'] ['section 96 Modification Application' 'dwelling House Development' 'floor Space Ratio' 'bulk and Scale' 'streetscape Impact' 'setbacks' 'building Height']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Against Refusal of an Application to Modify Development Consent 1080/2003 / Final Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether the proposed modification to development consent 1080/2003 should be approved having regard to the council's floor space ratio, height and setback controls." 'Whether the modified dwelling would be an overdevelopment of the site because of its bulk, scale and streetscape impacts.' 'Whether covered balcony and outdoor areas should be included in the floor space ratio assessment under the Canterbury Single Unit Dwelling House Code.' 'Whether the applicant had submitted sufficient information for assessment against Canterbury Energy Smart Homes Policy requirements.']

Ratio Decidendi

Although the modified proposal was substantially the same development as the original consent, the cumulative increase in floor space, including roofed balcony areas required to be counted under the Code, would produce excessive bulk and scale inconsistent with the character of the locality and the council's planning intent. The merits assessment under the Environmental Planning and Assessment Act 1979 therefore did not support approval of the s 96 modification, and hardship arising from the previous owner's unauthorised construction was given no significant weight.

Court Disposition

The appeal was dismissed and the section 96 application to modify development consent 1080/2003 was refused.

Orders

  • ['The appeal is dismissed;' 'The section 96 application to modify development consent 1080/2003 is refused;' 'The exhibits, other than exhibits A, C and 1 are returned.']