Cheng v Waverley Council [2016] NSWLEC 1289

Cheng v Waverley Council [2016] NSWLEC 1289

The Court was not satisfied that it was appropriate to delete condition A.2(a) and increase the approved building height from RL71.3 AHD to RL72 AHD because the increased height would reduce valued city skyline views from 2 Portland Street, did not minimise impacts on existing views or encourage equitable view sharing under the DCP, and the Council's RL71.3 AHD requirement was a rational benchmark based on the recently approved and constructed dwellings at 31-33 Portland Street rather than an arbitrary limit.

Jurisdiction
Australia
Judgment Date
30 June 2016
Procedural Posture
Class 1 Appeal Under S 97 AA of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Modification Application / Hearing After Termination of S 34 AA Conciliation Conference; Final Orders Made by Addendum
Outcome
Appeal upheld; modification application approved as set out in Annexure A, but the Court declined to approve deletion of condition A.2(a) increasing the height to RL72 AHD.
Legal Topics
['modification of Development Consent' 'building Height' 'setbacks' 'amenity Impacts' 'view Sharing' 'impacts on Views' 'development Control Plan Compliance']
['environmental and Planning Law' 'development Consent Modification'] ['modification of Development Consent' 'building Height' 'setbacks' 'amenity Impacts' 'view Sharing' 'impacts on Views' 'development Control Plan Compliance']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 97 AA of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Modification Application / Hearing After Termination of S 34 AA Conciliation Conference; Final Orders Made by Addendum

Legal Issues

  1. 1 ['Whether the overall height condition A.2(a) should be deleted so that the approved building height could increase from RL71.3 AHD to RL72 AHD.' 'Whether the proposed height would unreasonably affect views from neighbouring properties, particularly 2 Portland Street.' 'Whether the proposed modified development achieved the relevant objectives and controls of the Waverley Local Environmental Plan 2012 and Waverley Development Control Plan 2012.']

Ratio Decidendi

The Court was not satisfied that it was appropriate to delete condition A.2(a) and increase the approved building height from RL71.3 AHD to RL72 AHD because the increased height would reduce valued city skyline views from 2 Portland Street, did not minimise impacts on existing views or encourage equitable view sharing under the DCP, and the Council's RL71.3 AHD requirement was a rational benchmark based on the recently approved and constructed dwellings at 31-33 Portland Street rather than an arbitrary limit.

Court Disposition

Appeal upheld; modification application approved as set out in Annexure A, but the Court declined to approve deletion of condition A.2(a) increasing the height to RL72 AHD.

Orders

  • ['The appeal is upheld.' 'The Modification Application DA/252/2015/A to modify Development Consent No 252/2015 for the demolition of an existing dwelling and construction of a new part two, part three storey dwelling and swimming pool at 35 Portland Street Dover Heights is determined by approving the modifications...