Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1733

Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1733

The Court was not able to form the positive opinion that the roof modification was substantially the same as the original development consent because the roof area and rooftop functionality were substantially increased and qualitatively and quantitatively different from the approved roof terrace, even though the change did not amount to an additional storey. In any event, the roof modification failed on merit because its increased height would have significant visual impacts on the public domain and unacceptable additional overshadowing impacts on the penthouse apartment at 15-17 Tonkin Street, contrary to the objective in cl 4.3(1)(c) of the Sutherland Shire Local Environmental Plan 2015...

Jurisdiction
Australia
Judgment Date
30 November 2021
Procedural Posture
Class 1 Development Appeal / Appeal Against Deemed Refusal of Modification Application Ma20/0324; Interim Judgment and Directions
Outcome
Interim judgment; roof modification not approved, but internal changes and reduced setbacks to Levels 4, 5 and 6 to be approved subject to further amended plans and agreed conditions.
Legal Topics
['residential Flat Building' 'modification Application Under S 4.55(2) of the Environmental Planning and Assessment Act 1979' 'substantially the Same Development' 'building Height, Bulk and Scale' 'public Domain Visual Impacts' 'overshadowing and Solar Access Impacts' 'reasons for Original Consent']
['planning and Environment' 'development Consent Modification'] ['residential Flat Building' 'modification Application Under S 4.55(2) of the Environmental Planning and Assessment Act 1979' 'substantially the Same Development' 'building Height, Bulk and Scale' 'public Domain Visual Impacts' 'overshadowing and Solar Access Impacts' 'reasons for Original Consent']

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Procedural Posture

Class 1 Development Appeal / Appeal Against Deemed Refusal of Modification Application Ma20/0324; Interim Judgment and Directions

Legal Issues

  1. 1 ['Whether the development the subject of the modification application would be substantially the same 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 proposed roof modification had acceptable merit impacts on the public domain having regard to height, bulk and scale.' 'Whether the proposed roof modification had acceptable overshadowing and solar access impacts on the penthouse apartment at 15-17 Tonkin Street.' 'Whether the Court should approve internal changes and reduced setbacks to Levels 4, 5 and 6 while refusing the roof modification.']

Ratio Decidendi

The Court was not able to form the positive opinion that the roof modification was substantially the same as the original development consent because the roof area and rooftop functionality were substantially increased and qualitatively and quantitatively different from the approved roof terrace, even though the change did not amount to an additional storey. In any event, the roof modification failed on merit because its increased height would have significant visual impacts on the public domain and unacceptable additional overshadowing impacts on the penthouse apartment at 15-17 Tonkin Street, contrary to the objective in cl 4.3(1)(c) of the Sutherland Shire Local Environmental Plan 2015...

Court Disposition

Interim judgment; roof modification not approved, but internal changes and reduced setbacks to Levels 4, 5 and 6 to be approved subject to further amended plans and agreed conditions.

Orders

  • ['The Applicant is to prepare, upload on the NSW Planning Portal and file with the Court further amended plans reflecting the conclusion in this judgment at [73] to [80] by 21 December 2021.' 'Respondent is to file with the Court final, agreed, conditions of consent in the form of Annexure A and Annexure B as per...