Heymann-Cohen Pty Ltd v Waverley Council [2010] NSWLEC 1199

Heymann-Cohen Pty Ltd v Waverley Council [2010] NSWLEC 1199

The amended application was acceptable because it extended the approved fourth floor only approximately 4 metres east to align with the Bondi Breakers façade, remained set back from Campbell Parade, maintained a similar relationship with the Bondi Hotel and Bondi Breakers as the development consent, did not materially increase the bulk or visibility of the upper level, limited privacy and overshadowing impacts, and added an opening in the southern wall of level 3 that reduced bulk and visual impact. The Court accepted the experts' opinion that the amended application did not result in increased impacts beyond those resulting from the development consent.

Jurisdiction
Australia
Judgment Date
06 August 2010
Procedural Posture
Appeal Against Refusal of an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Amend Development Consent Da200/2008 / Judgment After Hearing
Outcome
Appeal upheld; the s 96 application to amend development consent DA200/2008 was approved and the consent was modified as set out in Annexure A.
Legal Topics
['s 96 Application' 'development Consent' 'front Setback' 'streetscape Impact' 'heritage Impact' 'amenity Impacts' 'overshadowing' 'privacy' 'bulk and Scale']
['planning and Environment Law' 'development Consent Modification'] ['s 96 Application' 'development Consent' 'front Setback' 'streetscape Impact' 'heritage Impact' 'amenity Impacts' 'overshadowing' 'privacy' 'bulk and Scale']

Case Brief

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Procedural Posture

Appeal Against Refusal of an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Amend Development Consent Da200/2008 / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the development consent for the Bondi Hotel should be modified under s 96 of the Environmental Planning and Assessment Act 1979.' 'Whether the amended reduction of the approved fourth floor front setback from approximately 15 metres to approximately 8 metres would create unacceptable visual, streetscape, heritage or amenity impacts.' "Whether amended plans agreed by the experts addressed the council experts' concerns."]

Ratio Decidendi

The amended application was acceptable because it extended the approved fourth floor only approximately 4 metres east to align with the Bondi Breakers façade, remained set back from Campbell Parade, maintained a similar relationship with the Bondi Hotel and Bondi Breakers as the development consent, did not materially increase the bulk or visibility of the upper level, limited privacy and overshadowing impacts, and added an opening in the southern wall of level 3 that reduced bulk and visual impact. The Court accepted the experts' opinion that the amended application did not result in increased impacts beyond those resulting from the development consent.

Court Disposition

Appeal upheld; the s 96 application to amend development consent DA200/2008 was approved and the consent was modified as set out in Annexure A.

Orders

  • ['The appeal is upheld.' 'The application under s 96 of the Environmental Planning and Assessment Act 1979 to amend development consent DA200/2008 for the Bondi Hotel, Campbell Parade, Bondi is approved. The consent is modified as set out in Annexure A.' 'The exhibits, except Exhibits 1 and A, may be returned.']