Collins & Anor v Leichhardt Municipal Council [2010] NSWLEC 1145

Collins & Anor v Leichhardt Municipal Council [2010] NSWLEC 1145

The two storey void over the rear living/dining area added unacceptable bulk without increasing accommodation, did not comply with the side setback requirements or building location zone in DCP 2000, would be visible from the park, would bring the two storey element closer to the adjoining outdoor living area at 14 Waratah Street and marginally reduce solar access. The amenity benefits of the void were not necessary and did not outweigh those impacts. Accordingly, the changes required by condition 2 were warranted, with amended plans to delete the two storey element over the living/dining room and make related design changes.

Jurisdiction
Australia
Judgment Date
20 May 2010
Procedural Posture
Appeal Against Deemed Refusal of an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent / Ex Tempore Judgment After S 34 Conciliation Conference Was Terminated
Outcome
Appeal upheld; s 96 modification application approved subject to conditions in Annexure A.
Legal Topics
['development Consent Modification' 'residential Alterations and Additions' 'amenity Impacts' 'bulk and Scale' 'solar Access' 'building Location Zone' 'side Setbacks']
['planning and Environment Law'] ['development Consent Modification' 'residential Alterations and Additions' 'amenity Impacts' 'bulk and Scale' 'solar Access' 'building Location Zone' 'side Setbacks']

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Procedural Posture

Appeal Against Deemed Refusal of an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent / Ex Tempore Judgment After S 34 Conciliation Conference Was Terminated

Legal Issues

  1. 1 ['Whether condition 2 requiring deletion of the two storey rear section should be deleted or varied in the s 96 modification application.' 'Whether the proposed two storey void over the living/dining area would unreasonably impact the adjoining property at 14 Waratah Street and the park.' 'Whether the proposal complied with or acceptably varied controls in Leichhardt Local Environmental Plan 2000 and Development Control Plan 2000, including floor space ratio, landscaped area, side setback and building location zone controls.']

Ratio Decidendi

The two storey void over the rear living/dining area added unacceptable bulk without increasing accommodation, did not comply with the side setback requirements or building location zone in DCP 2000, would be visible from the park, would bring the two storey element closer to the adjoining outdoor living area at 14 Waratah Street and marginally reduce solar access. The amenity benefits of the void were not necessary and did not outweigh those impacts. Accordingly, the changes required by condition 2 were warranted, with amended plans to delete the two storey element over the living/dining room and make related design changes.

Court Disposition

Appeal upheld; s 96 modification application approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'The application under s 96 of the Environmental Planning and Assessment Act 1979 to modify development consent D/2008/353 is approved subject to the conditions in Annexure A.' 'The exhibits, except exhibits A, 3 and 5 may be returned.']