Wang v Woollahra Municipal Council [2008] NSWLEC 3

Wang v Woollahra Municipal Council [2008] NSWLEC 3

Although the application related to the same development, the substantive modifications did not merit consent because they substantially increased basement excavation and floor space, exceeded the height standard at the lift section, failed to satisfy the stepped side setback controls, created overdevelopment and an undesirable sense of enclosure near the right of way, increased risk to adjoining properties, and were not sympathetic to the heritage item 'Dunara' or its setting. The cumulative privacy and amenity impacts also weighed against approval of the substantive modifications, although some peripheral modifications could be approved subject to conditions.

Jurisdiction
Australia
Judgment Date
10 January 2008
Procedural Posture
Appeal Against Refusal of a S 96 Application for Modifications to a Development Consent / Judgment After Hearing
Outcome
Appeal upheld in part; s 96 modifications approved subject to conditions in Annexure A.
Legal Topics
['section 96 Modification' 'dwelling House Modification' 'height and Bulk' 'excavation' 'setbacks' 'heritage Impact' 'amenity and Privacy' 'front Fencing']
['environmental Planning and Assessment' 'land and Environment' 'heritage Conservation'] ['section 96 Modification' 'dwelling House Modification' 'height and Bulk' 'excavation' 'setbacks' 'heritage Impact' 'amenity and Privacy' 'front Fencing']

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Procedural Posture

Appeal Against Refusal of a S 96 Application for Modifications to a Development Consent / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed s 96 modifications were for the same development and should be approved on their merits.' 'Whether the proposed lift, car stacker and associated works resulted in unacceptable height, bulk, floor space ratio and setback impacts.' "Whether the excavation associated with the basement modifications was excessive or created unacceptable risk to adjoining properties and the heritage item 'Dunara'." "Whether the proposed modifications would adversely affect the heritage significance and setting of 'Dunara'." 'Whether the proposed fenestration, balconies and roof terrace changes would create unacceptable privacy impacts.' 'Whether modifications to the front fence should be approved.']

Ratio Decidendi

Although the application related to the same development, the substantive modifications did not merit consent because they substantially increased basement excavation and floor space, exceeded the height standard at the lift section, failed to satisfy the stepped side setback controls, created overdevelopment and an undesirable sense of enclosure near the right of way, increased risk to adjoining properties, and were not sympathetic to the heritage item 'Dunara' or its setting. The cumulative privacy and amenity impacts also weighed against approval of the substantive modifications, although some peripheral modifications could be approved subject to conditions.

Court Disposition

Appeal upheld in part; s 96 modifications approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld in part.' 'The s 96 modifications to DA 2003/929/2 for demolition of the existing dwelling and construction of a new dwelling at 9 Dunara Gardens, Point Piper are approved, subject to the conditions in Annexure A.' 'The exhibits may be returned except for 3 and A.']