Angolet Pty Ltd v Central Coast Council [2023] NSWLEC 1346

Angolet Pty Ltd v Central Coast Council [2023] NSWLEC 1346

The Court was satisfied that the proposed modification would be substantially the same development as the original consent because it retained the shop top housing use and was not a radical transformation when considered qualitatively and quantitatively. However, the modification application warranted refusal on merit because the additional upper level and reduced setbacks, in the context of non-compliance with LEP 2014 height and FSR controls and relevant DCP 2013 controls, would cause unreasonable and unacceptable view impacts, particularly to apartments at No. 15 Kurrawyba Avenue, and would not achieve appropriate view sharing or view corridors.

Jurisdiction
Australia
Judgment Date
05 July 2023
Procedural Posture
Class 1 Appeal Concerning Modification Application Da/52083/2017/4 Under S 4.55(2) of the Environmental Planning and Assessment Act 1979 / Final Hearing After Unsuccessful S 34 Conciliation Conference
Outcome
Appeal dismissed; modification application refused.
Legal Topics
['modification of Development Consent' 'shop Top Housing' 'substantially the Same Development' 'view Loss and View Sharing' 'building Height and Floor Space Ratio Controls' 'development Control Plan Compliance' 'public Submissions']
['environmental Planning and Development' 'land and Environment'] ['modification of Development Consent' 'shop Top Housing' 'substantially the Same Development' 'view Loss and View Sharing' 'building Height and Floor Space Ratio Controls' 'development Control Plan Compliance' 'public Submissions']

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Procedural Posture

Class 1 Appeal Concerning Modification Application Da/52083/2017/4 Under S 4.55(2) of the Environmental Planning and Assessment Act 1979 / Final Hearing After Unsuccessful S 34 Conciliation Conference

Legal Issues

  1. 1 ['Whether the development as modified would be substantially the same development as the development for which consent was originally granted under s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether the view loss impacts arising from the modification application were acceptable.' 'Whether the non-compliances with height, FSR and development control plan controls should be accepted on merit.' 'Whether the modification application should be approved or refused having regard to the relevant matters under ss 4.55(3) and 4.15(1) of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

The Court was satisfied that the proposed modification would be substantially the same development as the original consent because it retained the shop top housing use and was not a radical transformation when considered qualitatively and quantitatively. However, the modification application warranted refusal on merit because the additional upper level and reduced setbacks, in the context of non-compliance with LEP 2014 height and FSR controls and relevant DCP 2013 controls, would cause unreasonable and unacceptable view impacts, particularly to apartments at No. 15 Kurrawyba Avenue, and would not achieve appropriate view sharing or view corridors.

Court Disposition

Appeal dismissed; modification application refused.

Orders

  • ['The appeal is dismissed.' 'Modification application DA/52083/2017/4 seeking consent for alterations and additions to the approved development at 5-7 Church Street, Terrigal (Lots 19 and 20 in DP 7861) principally by the addition of a new level (sixth storey), containing a single penthouse apartment and alterations...