Lifestyle Manor Anglesea Pty Ltd v Waverley Council [2009] NSWLEC 1156

Lifestyle Manor Anglesea Pty Ltd v Waverley Council [2009] NSWLEC 1156

The Court was satisfied that the modification related to the same development, had been notified, and that objections had been considered. The rooftop plant enclosure was unlikely to be discernible from the near vicinity or surrounding areas, its visual impact was minor and not foreign in the mixed-density area, recommended acoustic barriers should satisfy condition 14 noise criteria, and the minor changes to rooftop structures would make no material change to shadowing. The modification therefore satisfied the relevant planning controls and merited conditional consent.

Jurisdiction
Australia
Judgment Date
18 May 2009
Procedural Posture
Appeal Against Council's Refusal of a S 96 Modification Application to Development Consent / Ex Tempore Judgment After Hearing and View
Outcome
Appeal upheld; s 96 modification approved subject to conditions.
Legal Topics
['section 96 Modification' 'rooftop Plant Room Levels' 'visual Impact' 'noise Emissions' 'solar Access' 'seniors Living Development']
['environmental and Planning Law' 'development Consent Modification'] ['section 96 Modification' 'rooftop Plant Room Levels' 'visual Impact' 'noise Emissions' 'solar Access' 'seniors Living Development']

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 Against Council's Refusal of a S 96 Modification Application to Development Consent / Ex Tempore Judgment After Hearing and View

Legal Issues

  1. 1 ['Whether condition 3(c), restricting roof plant to RL 95.5, should be modified to permit rooftop air-conditioning structures and solar panels with increased height.' 'Whether the increased height of rooftop plant enclosures would create unacceptable visual impacts.' 'Whether rooftop air-conditioning units would cause unacceptable noise disamenity.' 'Whether the modification would cause unacceptable loss of solar access to adjoining residential properties.' 'Whether the s 96 modification related to the same development and had been notified with objections considered.']

Ratio Decidendi

The Court was satisfied that the modification related to the same development, had been notified, and that objections had been considered. The rooftop plant enclosure was unlikely to be discernible from the near vicinity or surrounding areas, its visual impact was minor and not foreign in the mixed-density area, recommended acoustic barriers should satisfy condition 14 noise criteria, and the minor changes to rooftop structures would make no material change to shadowing. The modification therefore satisfied the relevant planning controls and merited conditional consent.

Court Disposition

Appeal upheld; s 96 modification approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'The s 96 modification to the conditions of consent for DA 691/2006/A is approved subject to the conditions in Annexure A.' 'The exhibits may be returned except 2, A and E.']