Domazet v Eurobodalla Council [2011] NSWLEC 1325

Domazet v Eurobodalla Council [2011] NSWLEC 1325

The modified proposal does not constitute substantially the same development as approved, does not accord with the character of the area, does not maximise opportunity for views, causes unreasonable and unnecessary loss of highly valued water views, and is not justified by site constraints or public interest; compliance with building envelope does not override view sharing objectives; appeal dismissed.

Jurisdiction
Australia
Judgment Date
16 November 2011
Procedural Posture
Development Modification Appeal / Final Judgment
Outcome
Appeal dismissed
Legal Topics
['development Modification' 'dwelling Height' 'roof Shape' 'view Sharing' 'public Interest' 'approved Development Criteria']
['planning and Environment Law'] ['development Modification' 'dwelling Height' 'roof Shape' 'view Sharing' 'public Interest' 'approved Development Criteria']

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Procedural Posture

Development Modification Appeal / Final Judgment

Legal Issues

  1. 1 ['Whether the modified proposal constitutes substantially the same development as approved under s 96 Environmental Planning and Assessment Act 1979' 'Whether the proposal accords with character of the area and beneficial features under Eurobodalla Urban Local Environmental Plan 1999' 'Whether the proposal maximises opportunity for views and has reasonable impact under Eurobodalla Development Control Plan 2006' 'Whether the proposal is in public interest']

Ratio Decidendi

The modified proposal does not constitute substantially the same development as approved, does not accord with the character of the area, does not maximise opportunity for views, causes unreasonable and unnecessary loss of highly valued water views, and is not justified by site constraints or public interest; compliance with building envelope does not override view sharing objectives; appeal dismissed.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'Modification Application M859/08 under s96 of the Environmental Planning and Assessment Act for additions and alterations to an existing dwelling at 70 Yugura Street is refused.' 'The exhibits are returned to the parties with the exception of Exhibits A and 1.']