Bilotta v Inner West Council [2022] NSWLEC 1058

Bilotta v Inner West Council [2022] NSWLEC 1058

The lift overrun modification was refused because the constructed/proposed increased lift overrun substantially increased the visible volume above the roof plane and ridge, overwhelmed the pitched roof form, and was not of minimal environmental impact within s 4.55(1A)(a). The general modification was refused because reducing the eastern first-floor side setback and increasing the eastern parapet height would unreasonably affect the amenity of occupants of 95 Louisa Road by increasing enclosure and impinging on outlook, was contrary to relevant DCP objectives concerning compatible bulk, scale and form, and the plans were inaccurate and uncertain.

Jurisdiction
Australia
Judgment Date
09 February 2022
Procedural Posture
Class 1 Appeals Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal and Deemed Refusal of Modification Applications / Hearing After Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated Without Agreement
Outcome
Both appeals dismissed and both modification applications refused.
Legal Topics
['modification Applications Under S 4.55 of the Environmental Planning and Assessment Act 1979' 'minimal Environmental Impact' 'building Height, Bulk and Scale' 'heritage Conservation Area Impacts' 'residential Amenity and Side Setbacks' 'visual Privacy and Views']
['planning and Environment' 'development Consent Modification' 'heritage Conservation'] ['modification Applications Under S 4.55 of the Environmental Planning and Assessment Act 1979' 'minimal Environmental Impact' 'building Height, Bulk and Scale' 'heritage Conservation Area Impacts' 'residential Amenity and Side Setbacks' 'visual Privacy and Views']

Case Brief

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Procedural Posture

Class 1 Appeals Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal and Deemed Refusal of Modification Applications / Hearing After Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated Without Agreement

Legal Issues

  1. 1 ['Whether Modification Application No. MOD/2020/0231 to raise the height of the lift overrun was of minimal environmental impact within s 4.55(1A)(a) of the Environmental Planning and Assessment Act 1979' 'Whether the Court could exercise power under s 4.55(2) of the Environmental Planning and Assessment Act 1979 for an application made under s 4.55(1A) where there is more than minimal environmental impact' 'Whether Modification Application No. MOD/2021/0320 was acceptable having regard to the reduced eastern side setback, increased eastern parapet height, bulk and scale, and amenity impacts on 95 Louisa Road, Birchgrove' 'Whether the proposed modifications would unacceptably affect the heritage values and desired future character of the Birchgrove Heritage Conservation Area']

Ratio Decidendi

The lift overrun modification was refused because the constructed/proposed increased lift overrun substantially increased the visible volume above the roof plane and ridge, overwhelmed the pitched roof form, and was not of minimal environmental impact within s 4.55(1A)(a). The general modification was refused because reducing the eastern first-floor side setback and increasing the eastern parapet height would unreasonably affect the amenity of occupants of 95 Louisa Road by increasing enclosure and impinging on outlook, was contrary to relevant DCP objectives concerning compatible bulk, scale and form, and the plans were inaccurate and uncertain.

Court Disposition

Both appeals dismissed and both modification applications refused.

Orders

  • ['In the 2021/156562 appeal: The appeal is dismissed.' 'In the 2021/156562 appeal: Modification Application No. MOD/2020/0231 to raise the height of the lift shaft, at 93 Louisa Road, Birchgrove, is refused.' 'In the 2021/276619 appeal: The appeal is dismissed.' 'In the 2021/276619 appeal: Modification Application...