Tannous v Port Stephens Council [2007] NSWLEC 7

Tannous v Port Stephens Council [2007] NSWLEC 7

The roof top terraces would not relate well to the local context and would have significant architectural impacts that are not minor or negligible. As such, the modification application can only be approved if the roof top terraces are removed, as their retention would not achieve the objectives of the zone or compliance with relevant planning controls.

Parties
Applicant: Charly Tannous; Respondent: Port Stephens Council
Jurisdiction
Australia
Judgment Date
10 January 2007
Procedural Posture
Modification Application (development Consent) Appeal / Judgment on Appeal
Outcome
Appeal allowed, application granted in modified form
Legal Topics
Development Consent, Modification Applications, Unlawful Works, Roof Top Terraces, Building Height, Floor Space Ratio, Planning Controls, Amenity Impacts
Planning and Environment Law Development Consent Modification Applications Unlawful Works Roof Top Terraces Building Height Floor Space Ratio Planning Controls +1 more

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Parties

Charly Tannous

Applicant

Port Stephens Council

Respondent

Procedural Posture

Modification Application (development Consent) Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the modification application for roof top terraces and associated works should be approved given building height and floor space ratio non-compliances
  2. 2 Whether the proposed modifications unacceptably impact amenity, visual privacy, noise levels, and architectural character
  3. 3 Appropriateness of requiring removal of roof terraces as a condition of consent

Ratio Decidendi

The roof top terraces would not relate well to the local context and would have significant architectural impacts that are not minor or negligible. As such, the modification application can only be approved if the roof top terraces are removed, as their retention would not achieve the objectives of the zone or compliance with relevant planning controls.

Court Disposition

Appeal allowed, application granted in modified form

Orders

  • The appeal is upheld.
  • The development consent No. 16-2002-1760-1 is modified in accordance with the conditions in Annexure A, including the requirement that roof top terraces be roofed-over to make them unusable as such.