Boon v Waverley Council [2016] NSWLEC 1190

Boon v Waverley Council [2016] NSWLEC 1190

The modified proposal results in minimal adverse impact, complies with the majority of planning controls aside from a minor height exceedance which is justified, does not create undesirable precedent, addresses privacy and amenity concerns, and maintains an effective two storey presentation to the street. Therefore, it is lawful and appropriate to grant consent to the modification application.

Parties
Applicant: Jason Woodford Boon; Respondent: Waverley Council
Jurisdiction
Australia
Judgment Date
25 May 2016
Procedural Posture
Modification Application – Appeal Under S97 AA Environmental Planning and Assessment Act 1979 / Consent Orders After Hearing on Appeal
Outcome
Appeal upheld by consent; consent to modify development granted; leave to rely on specified amended plans given.
Legal Topics
Development Consent Modification, Building Height Controls, Resident Objections, Precedent in Planning Law
Planning and Environment Law Development Consent Modification Building Height Controls Resident Objections Precedent in Planning Law

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Parties

Jason Woodford Boon

Applicant

Waverley Council

Respondent

Procedural Posture

Modification Application – Appeal Under S97 AA Environmental Planning and Assessment Act 1979 / Consent Orders After Hearing on Appeal

Legal Issues

  1. 1 Whether the proposed modification for a partial third storey addition should be approved despite breach of height control and resident objections
  2. 2 Whether the modification is consistent with applicable planning controls and streetscape character

Ratio Decidendi

The modified proposal results in minimal adverse impact, complies with the majority of planning controls aside from a minor height exceedance which is justified, does not create undesirable precedent, addresses privacy and amenity concerns, and maintains an effective two storey presentation to the street. Therefore, it is lawful and appropriate to grant consent to the modification application.

Court Disposition

Appeal upheld by consent; consent to modify development granted; leave to rely on specified amended plans given.

Orders

  • By consent, the appeal is upheld.
  • Leave is granted to the Applicant to rely on specified plans by MHN Design Union Pty Ltd dated 9 March 2016 (DA-01(B), DA-03(B), DA-04(B), DA-05(B), DA-06(B)).