Innovate Architects v Sutherland Shire Council [2017] NSWLEC 1067

Innovate Architects v Sutherland Shire Council [2017] NSWLEC 1067

The proposed infilling of the level 4 balconies to create habitable bedrooms was unacceptable because it reduced effective separation to the northern boundary, failed to meet the objectives of the Apartment Design Guide and Sutherland Shire Council Local Environmental Plan 2015, materially affected privacy, outlook and redevelopment potential of 64 Ewos Parade, and added bulk inconsistent with streetscape and floor space objectives. Those level 4 changes warranted refusal, but the uncontested basement car parking changes and transposition of the adaptable unit were capable of approval once amended plans deleted the level 4 changes.

Jurisdiction
Australia
Judgment Date
17 February 2017
Procedural Posture
Class 1 Development Appeal Against Refusal of an Amendment Application to a Residential Flat Building / Principal Judgment With Directions, Followed by Addendum Making Final Orders in Chambers
Outcome
Appeal upheld; consent granted to the modification application subject to conditions after amended plans deleted the proposed level 4 changes.
Legal Topics
['residential Flat Building Modification Application' 'floor Space Ratio' 'building Separation' 'side Setbacks' 'adjoining Property Amenity' 'streetscape Presentation' 'bulk and Scale' 'sepp 65' 'apartment Design Guide' 'adaptable Housing' 'car Parking']
['planning and Environment' 'development Consent' 'land and Environment Court Appeals'] ['residential Flat Building Modification Application' 'floor Space Ratio' 'building Separation' 'side Setbacks' 'adjoining Property Amenity' 'streetscape Presentation' 'bulk and Scale' 'sepp 65' 'apartment Design Guide' 'adaptable Housing' 'car Parking']

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Procedural Posture

Class 1 Development Appeal Against Refusal of an Amendment Application to a Residential Flat Building / Principal Judgment With Directions, Followed by Addendum Making Final Orders in Chambers

Legal Issues

  1. 1 ['Whether the reduction in separation between habitable rooms and the boundary with the property to the north resulting from the changes at level 4 was acceptable' 'Whether the exceedance of the floor space control was appropriate and justified in the circumstances of the case' 'Whether the proposed enclosure of level 4 balconies would adversely affect adjoining land, streetscape quality, bulk and scale']

Ratio Decidendi

The proposed infilling of the level 4 balconies to create habitable bedrooms was unacceptable because it reduced effective separation to the northern boundary, failed to meet the objectives of the Apartment Design Guide and Sutherland Shire Council Local Environmental Plan 2015, materially affected privacy, outlook and redevelopment potential of 64 Ewos Parade, and added bulk inconsistent with streetscape and floor space objectives. Those level 4 changes warranted refusal, but the uncontested basement car parking changes and transposition of the adaptable unit were capable of approval once amended plans deleted the level 4 changes.

Court Disposition

Appeal upheld; consent granted to the modification application subject to conditions after amended plans deleted the proposed level 4 changes.

Orders

  • ['The applicant is granted leave to rely on amended plans.' 'The appeal is upheld.' 'Consent is granted to Modification Application No. MA/16/076 for alternations to DA 15/0471 at Lot A and Lot B, DP 386700, 66-68 Ewos Parade Cronulla, subject to conditions in Annexure A.' 'The exhibits are returned with the...