Redelman v Woollahra Municipal Council [2021] NSWLEC 1089

Redelman v Woollahra Municipal Council [2021] NSWLEC 1089

The modification application warranted approval because the statutory preconditions for modification were satisfied; the modified development was substantially the same as the approved development; notification and consideration of submissions had occurred; the proposal complied with the relevant development controls in the ADG, SEPP HSPD, LEP 2014 and DCP 2015; no applicable control imposed a maximum rooftop terrace size or required justification of the terrace size; the planning experts agreed there were no unreasonable amenity impacts from the rooftop terrace or the modification as a whole; previous acoustic and visual privacy contentions had been resolved; and the amended terrace...

Jurisdiction
Australia
Judgment Date
22 February 2021
Procedural Posture
Class 1 Appeal Against Actual Refusal of Modification Application Da/354/2016/3 / Final Judgment and Orders After Hearing
Outcome
Appeal upheld; modification application approved subject to conditions.
Legal Topics
['section 4.56 Modification Application' 'rooftop Terrace' 'seniors Housing Development' 'private Open Space' 'acoustic and Visual Privacy' 'substantially the Same Development' 'amenity Impacts']
['environmental Planning and Development Control' 'land and Environment Court' 'development Consent Modification'] ['section 4.56 Modification Application' 'rooftop Terrace' 'seniors Housing Development' 'private Open Space' 'acoustic and Visual Privacy' 'substantially the Same Development' 'amenity Impacts']

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Procedural Posture

Class 1 Appeal Against Actual Refusal of Modification Application Da/354/2016/3 / Final Judgment and Orders After Hearing

Legal Issues

  1. 1 ['Whether the development as modified was substantially the same development as the development for which consent was originally granted.' 'Whether the relevant notification and submission preconditions under s 4.56 of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the proposed rooftop terrace should be refused because, with approved private open space for Unit 4, it produced excessive private open space.' 'Whether the rooftop terrace was inappropriate in the context of the site and R2 Low Density Residential zoning.' 'Whether the necessity or justification for the rooftop terrace was a relevant basis for refusal where no planning control set a maximum terrace size or required justification of size.' 'Whether the modified development caused unreasonable acoustic, visual privacy, overshadowing, lighting or other amenity impacts on adjoining properties.']

Ratio Decidendi

The modification application warranted approval because the statutory preconditions for modification were satisfied; the modified development was substantially the same as the approved development; notification and consideration of submissions had occurred; the proposal complied with the relevant development controls in the ADG, SEPP HSPD, LEP 2014 and DCP 2015; no applicable control imposed a maximum rooftop terrace size or required justification of the terrace size; the planning experts agreed there were no unreasonable amenity impacts from the rooftop terrace or the modification as a whole; previous acoustic and visual privacy contentions had been resolved; and the amended terrace...

Court Disposition

Appeal upheld; modification application approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development consent DA/354/2016 originally granted on 20 January 2017 for a 3 storey seniors housing development with basement car park at 24 Northland Road, Bellevue Hill (being Lot 9 Section 1 DP 13285) is modified pursuant to s 4.56(1) of the Environmental Planning and Assessment Act...