Wilk v Inner West Council [2022] NSWLEC 1740

Wilk v Inner West Council [2022] NSWLEC 1740

The Court upheld the appeal and approved the modification because the additional floor area and site coverage exceedance were minor and would not cause material adverse impacts; the rear addition had been designed with a lowered southern wall, splayed roof and deletion of the blade wall to minimise visual bulk and overshadowing impacts on 34 Moore Street; a variation to the Building Location Zone was acceptable in the circumstances; the proposal complied with the side setback controls; the loss of the jacaranda tree was addressed by a replacement tree condition; and the modified development remained substantially the same as the development originally approved under Development Consent...

Jurisdiction
Australia
Judgment Date
29 December 2022
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Concerning a Modification Application Under S 4.55(8) / Final Determination After Hearing and Written Submissions
Outcome
Appeal upheld; modification application approved subject to conditions.
Legal Topics
['modification Application' 'alterations and Additions to Dwelling House' 'floor Space Ratio' 'site Coverage' 'building Location Zone' 'side Setbacks' 'visual Bulk' 'overshadowing' 'neighbour Amenity' 'heritage Conservation Area' 'tree Removal and Replacement']
['planning and Environment Law' 'development Consent Modification' 'residential Development'] ['modification Application' 'alterations and Additions to Dwelling House' 'floor Space Ratio' 'site Coverage' 'building Location Zone' 'side Setbacks' 'visual Bulk' 'overshadowing' 'neighbour Amenity' 'heritage Conservation Area' 'tree Removal and Replacement']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Concerning a Modification Application Under S 4.55(8) / Final Determination After Hearing and Written Submissions

Legal Issues

  1. 1 ['Whether the modification application for Development Application D/2018/639 should be approved despite non-compliance with floor space ratio and site coverage controls.' 'Whether the proposed rear addition and variation to the Building Location Zone were acceptable having regard to the Leichhardt Development Control Plan 2013.' 'Whether the proposed modification would cause unacceptable visual bulk or overshadowing impacts on 34 Moore Street.' 'Whether the proposed side setback complied with the applicable development control plan controls.' 'Whether the consent as modified would be substantially the same development as originally approved.']

Ratio Decidendi

The Court upheld the appeal and approved the modification because the additional floor area and site coverage exceedance were minor and would not cause material adverse impacts; the rear addition had been designed with a lowered southern wall, splayed roof and deletion of the blade wall to minimise visual bulk and overshadowing impacts on 34 Moore Street; a variation to the Building Location Zone was acceptable in the circumstances; the proposal complied with the side setback controls; the loss of the jacaranda tree was addressed by a replacement tree condition; and the modified development remained substantially the same as the development originally approved under Development Consent...

Court Disposition

Appeal upheld; modification application approved subject to conditions.

Orders

  • ['The appeal is upheld' 'The application to modify Development Application D/2018/639 for ground and first floor alterations and additions to the existing dwelling on land identified as Lot 16 in Deposited Plan 769 and known as 36 Moore Street Rozelle is approved subject to the terms and conditions set out in...