Kakoz & Anor v Fairfield City Council [2016] NSWLEC 1056

Kakoz & Anor v Fairfield City Council [2016] NSWLEC 1056

The proposed modifications, while non-compliant with numeric controls for floor space ratio and side setback, are acceptable because privacy and solar access are maintained, the streetscape and neighbourhood character are not unacceptably impacted, and the planning objectives of the controls are adequately met. Therefore, the appeal is upheld and the modifications approved.

Parties
First Applicant: Cenan Kakoz; Second Applicant: Rasha Daniel; Respondent: Fairfield City Council
Jurisdiction
Australia
Judgment Date
17 February 2016
Procedural Posture
Class 1 Appeal Under S 97 AA Environmental Planning and Assessment Act 1979 / Appeal Decision After Hearing
Outcome
Appeal upheld; modification application approved
Legal Topics
Development Modification, Floor Space Ratio, Side Setback, Solar Access, Privacy Impacts, Development Control Plan (dcp) Compliance
Planning and Environment Law Development Modification Floor Space Ratio Side Setback Solar Access Privacy Impacts Development Control Plan (dcp) Compliance

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Parties

Cenan Kakoz

First Applicant

Rasha Daniel

Second Applicant

Fairfield City Council

Respondent

Procedural Posture

Class 1 Appeal Under S 97 AA Environmental Planning and Assessment Act 1979 / Appeal Decision After Hearing

Legal Issues

  1. 1 Whether the proposed modifications to the approved dwelling house should be approved despite non-compliance with floor space ratio and side setback controls
  2. 2 Whether the modifications cause unacceptable impacts on amenity, streetscape, solar access, and privacy

Ratio Decidendi

The proposed modifications, while non-compliant with numeric controls for floor space ratio and side setback, are acceptable because privacy and solar access are maintained, the streetscape and neighbourhood character are not unacceptably impacted, and the planning objectives of the controls are adequately met. Therefore, the appeal is upheld and the modifications approved.

Court Disposition

Appeal upheld; modification application approved

Orders

  • The appeal is upheld
  • Modification Application No 910.2/2012 to modify Development Consent No 910.1/2012 for the construction of a two storey dwelling at 4 Dunstan Street Fairfield West is approved as set out in Annexure A