Jonson and Ors v Woollahra Municipal Council [2006] NSWLEC 372

Jonson and Ors v Woollahra Municipal Council [2006] NSWLEC 372

The modification application was refused because the additional height would cause substantial and unacceptable loss of primary ocean views from Units 5 and 6 at 46 Birriga Road contrary to the applicable view sharing controls, and because the drawings and evidence were unsuitable to support a consent due to inconsistencies in levels and insufficient information about how Unit 3 could be lowered without affecting Units 1 and 2.

Jurisdiction
Australia
Judgment Date
24 February 2006
Procedural Posture
Appeal Concerning Refusal of a S 96 Application to Amend an Existing Development Consent Da455/2004 / Ex Tempore Judgment After Hearing
Outcome
The application to modify DA455/2004 was refused.
Legal Topics
['section 96 Modification Application' 'view Loss' 'building Height Control' 'construction Without Construction Certificate' 'construction Not in Accordance With Approved Plans' 'streetscape Impact' 'parking Arrangements']
['planning and Environment' 'development Consent'] ['section 96 Modification Application' 'view Loss' 'building Height Control' 'construction Without Construction Certificate' 'construction Not in Accordance With Approved Plans' 'streetscape Impact' 'parking Arrangements']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Concerning Refusal of a S 96 Application to Amend an Existing Development Consent Da455/2004 / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed modification should be approved given inconsistencies between the modification plans and surveyed levels for completed construction works.' 'Whether the proposed increase in height was unacceptable because it breached the 12 metre height limit in clause 12 of the Woollahra Local Environmental Plan and the objectives of the height control in clause 12A(a).' 'Whether the proposed increase in height had an unacceptable impact on views from properties opposite Birriga Road, particularly unit 6, 44 Birriga Road and units 5, 6, 9 and 10 of 46 Birriga Road.' 'Whether the proposed increase in height had an unacceptable impact on the streetscape of Birriga Road and the character of the area.' 'Whether the proposed parking arrangements were unacceptable due to manoeuvring requirements associated with the turntable and visitor parking.']

Ratio Decidendi

The modification application was refused because the additional height would cause substantial and unacceptable loss of primary ocean views from Units 5 and 6 at 46 Birriga Road contrary to the applicable view sharing controls, and because the drawings and evidence were unsuitable to support a consent due to inconsistencies in levels and insufficient information about how Unit 3 could be lowered without affecting Units 1 and 2.

Court Disposition

The application to modify DA455/2004 was refused.

Orders

  • ['The application to modify DA455/2004 is refused.' 'The exhibits are returned to the parties except Exhibits 1, page 177 of Exhibit 2 and Exhibits 3, 6, 7, A, B and C.']