Hexiva Pty Ltd v Sydney City Council [2005] NSWLEC 133

Hexiva Pty Ltd v Sydney City Council [2005] NSWLEC 133

The proposed modifications could be considered under s 96 because they were substantially the same development, but approval was warranted only in part. The glazing or enclosure of the foyer area and minor wall movement between the bedroom and balcony were acceptable. The additional bedrooms and floor space on level five were not justified because they would add bulk to a building already exceeding current controls and would be inappropriate having regard to adjoining properties, the reduced scale of neighbouring buildings and the conservation area context. Southern elevation windows could be permitted only as highlight windows with a 1.6 m sill height to protect privacy while allowing...

Jurisdiction
Australia
Judgment Date
25 February 2005
Procedural Posture
Appeal Under Section 96(6) of the Environmental Planning and Assessment Act Concerning a Section 96 Application to Modify a Development Consent / Final Orders Following on Site Hearing and Mention
Outcome
Appeal upheld in part; section 96 application approved in part.
Legal Topics
['modification of Development Consent' 'residential Flat Building Alterations and Additions' 'floor Space Ratio and Building Bulk' 'privacy Impacts From Windows' 'development Control Plan Controls' 'conservation Area Impacts']
['planning and Environment Law'] ['modification of Development Consent' 'residential Flat Building Alterations and Additions' 'floor Space Ratio and Building Bulk' 'privacy Impacts From Windows' 'development Control Plan Controls' 'conservation Area Impacts']

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Procedural Posture

Appeal Under Section 96(6) of the Environmental Planning and Assessment Act Concerning a Section 96 Application to Modify a Development Consent / Final Orders Following on Site Hearing and Mention

Legal Issues

  1. 1 ['Whether the proposed modifications were substantially the same development for the purposes of s 96.' 'Whether the proposed additional bedrooms and floor area on level five should be approved having regard to bulk, scale, planning controls and impacts on adjoining properties.' 'Whether proposed windows on the southern elevation should be permitted and, if so, with what sill height to protect privacy.' "Whether amended plans submitted after the on-site hearing reflected only the Court's approved changes."]

Ratio Decidendi

The proposed modifications could be considered under s 96 because they were substantially the same development, but approval was warranted only in part. The glazing or enclosure of the foyer area and minor wall movement between the bedroom and balcony were acceptable. The additional bedrooms and floor space on level five were not justified because they would add bulk to a building already exceeding current controls and would be inappropriate having regard to adjoining properties, the reduced scale of neighbouring buildings and the conservation area context. Southern elevation windows could be permitted only as highlight windows with a 1.6 m sill height to protect privacy while allowing...

Court Disposition

Appeal upheld in part; section 96 application approved in part.

Orders

  • ['The appeal under section 96(6) of the Environmental Planning and Assessment Act for the property known as 5 Tusculum Street, Potts Point, is upheld in part.' 'The s 96 application dated 25 July 2003 to modify the consent, determined by the then South Sydney City Council on 23 May 1999, is approved in part as shown...