DMD Property Pty Ltd v Botany Bay City Council [2016] NSWLEC 1144

DMD Property Pty Ltd v Botany Bay City Council [2016] NSWLEC 1144

The modification was acceptable because the proposed unit was substantially setback from Botany Road, was contained within the approved building height apart from a minor 200mm lift overrun increase, and would not be significantly discernible from or materially more visually dominant than the development already approved. The Court was not satisfied that the modification would cause significant adverse impacts on the Botany Township Heritage Conservation Area, nearby heritage items, streetscape character, desired future character, or SEPP 65 context and scale principles, and found the modified development substantially the same as the approved development.

Jurisdiction
Australia
Judgment Date
20 April 2016
Procedural Posture
Class 1 Appeal Under S 97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of a S 96(2) Modification Application / Principal Judgment After Hearing
Outcome
Appeal upheld; s 96 modification application approved subject to conditions in Annexure A.
Legal Topics
['modification Application' 'top Storey Residential Unit' 'mixed Use Development' 'height' 'heritage Impacts' 'streetscape Character' 'heritage Conservation Area' 'precedent' 'sepp 65 Design Quality Principles']
['planning and Environment' 'development Consent Modification' 'heritage Conservation'] ['modification Application' 'top Storey Residential Unit' 'mixed Use Development' 'height' 'heritage Impacts' 'streetscape Character' 'heritage Conservation Area' 'precedent' 'sepp 65 Design Quality Principles']

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Procedural Posture

Class 1 Appeal Under S 97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of a S 96(2) Modification Application / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed additional top storey residential unit and 200mm increase to the lift overrun would have unacceptable visual impacts in the locality.' 'Whether the modification would adversely affect the Botany Township Heritage Conservation Area or nearby heritage items, including Botany Town Hall and workers cottages.' 'Whether the proposal was compatible with streetscape character and desired future character under the LEP, DCP and SEPP 65 design quality principles.' 'Whether approval would create an undesirable precedent for five level development to Botany Road.' 'Whether the modified development remained substantially the same as the approved development.']

Ratio Decidendi

The modification was acceptable because the proposed unit was substantially setback from Botany Road, was contained within the approved building height apart from a minor 200mm lift overrun increase, and would not be significantly discernible from or materially more visually dominant than the development already approved. The Court was not satisfied that the modification would cause significant adverse impacts on the Botany Township Heritage Conservation Area, nearby heritage items, streetscape character, desired future character, or SEPP 65 context and scale principles, and found the modified development substantially the same as the approved development.

Court Disposition

Appeal upheld; s 96 modification application approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'The section 96 modification application 14/62/03 to development application (DA 14/062) for the addition of a top storey residential unit to a mixed used building at 1144-1146 Botany Road, Botany is approved, subject to the conditions in Annexure A.' 'The exhibits, except Exhibits A, B, 4...