Won v Ashfield Council [2015] NSWLEC 1201

Won v Ashfield Council [2015] NSWLEC 1201

The amended modification application was within the limited scope of the modification proceedings, complied with all relevant development standards, including the applicable height controls, and the expert acoustic material showed no non-compliance with relevant EPA acoustic standards. Objections directed to the broader approved development were outside the Court's jurisdiction in the modification application. There was no proper basis to require further amendment or refuse the modified proposal, so the proposed consent orders should be made.

Jurisdiction
Australia
Judgment Date
04 June 2015
Procedural Posture
Class 1 Modification Application/development Appeal / Consent Orders After Unsuccessful Conciliation Conference and Amended Modification Proposal
Outcome
Appeal upheld; modification application approved by consent.
Legal Topics
['modification Application' 'consent Orders' 'residential Care Facility' 'building Height Controls' 'acoustic Impacts' 'objector Submissions']
['planning and Environment Law'] ['modification Application' 'consent Orders' 'residential Care Facility' 'building Height Controls' 'acoustic Impacts' 'objector Submissions']

Case Brief

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Procedural Posture

Class 1 Modification Application/development Appeal / Consent Orders After Unsuccessful Conciliation Conference and Amended Modification Proposal

Legal Issues

  1. 1 ['Whether the applicant should have leave to rely on amended plans forming the basis of proposed consent orders.' 'Whether the amended modification application complied with relevant development standards, including building height controls under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 and Ashfield Local Environmental Plan 2013.' "Whether objections concerning the plant room's bulk, visibility and acoustic impacts provided a proper basis to refuse or further amend the modification application." "Whether objections directed to the original approved development, rather than the proposed modification, were within the Court's jurisdiction in the modification proceedings."]

Ratio Decidendi

The amended modification application was within the limited scope of the modification proceedings, complied with all relevant development standards, including the applicable height controls, and the expert acoustic material showed no non-compliance with relevant EPA acoustic standards. Objections directed to the broader approved development were outside the Court's jurisdiction in the modification application. There was no proper basis to require further amendment or refuse the modified proposal, so the proposed consent orders should be made.

Court Disposition

Appeal upheld; modification application approved by consent.

Orders

  • ['The Appeal is upheld.' 'Modification Application No DA10.2013.248.1/1 to modify Development Consent No DA10.2013.248.1 for the purposes of adjustment to window locations, relocate bin store, amend the roof ridge line, confirm and amend the roof plant platform and screening and relocate the underground cooling pit...