Cox v Newcastle City Council [2020] NSWLEC 1081

Cox v Newcastle City Council [2020] NSWLEC 1081

The appeal was dismissed because the Court accepted Mr Lamb's heritage evidence that the ground floor porch works were highly visible, obscured and confused the reading of the heritage item's entry space, fenestration and front façade from Frederick Street, used contrasting and uncharacteristic materials, and were unsympathetic to the item’s heritage significance. Considering cl 5.10(4) of Newcastle Local Environmental Plan 2012, that unacceptable heritage impact warranted refusal. The Court also accepted under s 4.55(3) of the Environmental Planning and Assessment Act 1979 that the modification was inconsistent with the reasons for the original consent, which had been granted on the...

Jurisdiction
Australia
Judgment Date
26 February 2020
Procedural Posture
Class 1 Appeal Against Refusal of Modification Application DA 2015/0298.02 / Hearing After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated; Principal Judgment
Outcome
Appeal dismissed; modification application refused.
Legal Topics
['modification Application Under S 4.55(1 A) of the Environmental Planning and Assessment Act 1979' 'heritage Impact of Works to Listed Local Heritage Item' 'consideration of Reasons for Original Development Consent Under S 4.55(3) of the Environmental Planning and Assessment Act 1979' 'newcastle Local Environmental Plan 2012 Cl 5.10 Heritage Conservation' 'newcastle Development Control Plan 2012 Heritage and Street Frontage Controls']
['planning and Environment Law' 'heritage Conservation' 'development Consent Modification'] ['modification Application Under S 4.55(1 A) of the Environmental Planning and Assessment Act 1979' 'heritage Impact of Works to Listed Local Heritage Item' 'consideration of Reasons for Original Development Consent Under S 4.55(3) of the Environmental Planning and Assessment Act 1979' 'newcastle Local Environmental Plan 2012 Cl 5.10 Heritage Conservation' 'newcastle Development Control Plan 2012 Heritage and Street Frontage Controls']

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Procedural Posture

Class 1 Appeal Against Refusal of Modification Application DA 2015/0298.02 / Hearing After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated; Principal Judgment

Legal Issues

  1. 1 ['Whether the proposed external additions to the ground floor porch had a detrimental impact on the heritage significance of the former Racecourse Inn heritage item.' 'Whether the proposed modification should be refused because it was inconsistent with the reasons for the grant of the original consent, including reinstatement and restoration of the heritage building.' 'Whether the application provided sufficient information to assess the proposed two Velux roof windows.']

Ratio Decidendi

The appeal was dismissed because the Court accepted Mr Lamb's heritage evidence that the ground floor porch works were highly visible, obscured and confused the reading of the heritage item's entry space, fenestration and front façade from Frederick Street, used contrasting and uncharacteristic materials, and were unsympathetic to the item’s heritage significance. Considering cl 5.10(4) of Newcastle Local Environmental Plan 2012, that unacceptable heritage impact warranted refusal. The Court also accepted under s 4.55(3) of the Environmental Planning and Assessment Act 1979 that the modification was inconsistent with the reasons for the original consent, which had been granted on the...

Court Disposition

Appeal dismissed; modification application refused.

Orders

  • ['The appeal is dismissed.' 'Modification application DA 2015/0298.02 for construction of external additions to the ground floor porch and addition of two Velux roof windows at 65 Frederick Street, Merewether (Lot 200 DP 88297065) is refused.' 'The exhibits are returned with the exception of Exhibits 1 and 3.']