Jaques Avenue Bondi Pty Limited v Waverley Council [No 2] [2004] NSWLEC 101

Jaques Avenue Bondi Pty Limited v Waverley Council [No 2] [2004] NSWLEC 101

Although the modification application was, on a very fine balance, substantially the same development for s 96(2)(a), it warranted refusal on the merits. The proposal sought to exceed the height control at a zone interface where the approved development already achieved the maximum permitted height, and the impact on the outlook from 5/9 Lamrock Avenue was not zero or de minimis. Separately, the proposal provided no additional parking for five additional residences, produced a seven-space shortfall under the Parking DCP, and would adversely affect an already saturated parking environment, particularly in peak summer periods. Those parking impacts justified refusal under s 79C and also...

Jurisdiction
Australia
Judgment Date
08 April 2004
Procedural Posture
Appeal Pursuant to S 96(6) of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application to Modify a Development Consent / Judgment
Outcome
Appeal dismissed and modification application refused.
Legal Topics
['section 96 Modification Application' 'substantially the Same Development' 'parking Impacts' 'zone Interface' 'streetscape' 'residential Amenity' 'development Control Plans']
['planning and Environment Law' 'development Consent Modification'] ['section 96 Modification Application' 'substantially the Same Development' 'parking Impacts' 'zone Interface' 'streetscape' 'residential Amenity' 'development Control Plans']

Case Brief

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Procedural Posture

Appeal Pursuant to S 96(6) of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application to Modify a Development Consent / Judgment

Legal Issues

  1. 1 ['Whether the modification application satisfied the threshold test in s 96(2)(a) of the Environmental Planning and Assessment Act 1979 by being substantially the same development as the approved development.' 'Whether the modification application would create unacceptable parking impacts in the vicinity.' 'Whether the modified development would be unacceptable as to bulk and scale when viewed from the street.' 'Whether the modified development would have an unacceptable impact on the amenity of residents of 5/9 Lamrock Avenue.']

Ratio Decidendi

Although the modification application was, on a very fine balance, substantially the same development for s 96(2)(a), it warranted refusal on the merits. The proposal sought to exceed the height control at a zone interface where the approved development already achieved the maximum permitted height, and the impact on the outlook from 5/9 Lamrock Avenue was not zero or de minimis. Separately, the proposal provided no additional parking for five additional residences, produced a seven-space shortfall under the Parking DCP, and would adversely affect an already saturated parking environment, particularly in peak summer periods. Those parking impacts justified refusal under s 79C and also...

Court Disposition

Appeal dismissed and modification application refused.

Orders

  • ['The appeal is dismissed.' 'The application pursuant to s 96(2) of the Environmental Planning and Assessment Act 1979 to modify Development Consent 308/02 (for the erection of a mixed commercial/residential building at 10 - 12 Jaques Avenue and 3 - 7 Lamrock Avenue, Bondi Beach) by the reconfiguration of levels 4...