Brown v Waverley Council [2018] NSWLEC 1660

Brown v Waverley Council [2018] NSWLEC 1660

The Court granted the modification because the amended proposal remained substantially the same development as originally approved, each roof terrace was limited to 15m2, and the exception provisions in cl 1.8(e) of the Waverley Development Control Plan 2012 Amendment No 5 were satisfied. Although the roof terraces would create visual privacy impacts, particularly in relation to the fourth floor of 5 Bulga Road, those impacts were not unreasonable or unacceptable having regard to the built form context, existing mutual overlooking, elevated view-seeking development, roof terraces nearby at George Street, the siting and parapeted roof form, and access arrangements indicating casual and...

Jurisdiction
Australia
Judgment Date
19 December 2018
Procedural Posture
Class 1 Appeal Against Refusal of a Modification Application to Development Consent No 116/2014 / Decision After Mandatory Conciliation Conference Under S 34 Aa(2)(a) of the Land and Environment Court Act 1979, With Parties Agreeing to Disposal Under S 34 Aa(2)(b)(ii)
Outcome
Appeal upheld; modification application granted.
Legal Topics
['roof Terraces' 'dual Occupancy' 'visual Privacy' 'acoustic Privacy' 'development Control Plan Controls' 'unreasonable Amenity Impacts' 'undesirable Precedent' 'substantially the Same Development']
['planning and Environment Law' 'development Consent Modification' 'land and Environment Court Appeals'] ['roof Terraces' 'dual Occupancy' 'visual Privacy' 'acoustic Privacy' 'development Control Plan Controls' 'unreasonable Amenity Impacts' 'undesirable Precedent' 'substantially the Same Development']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of a Modification Application to Development Consent No 116/2014 / Decision After Mandatory Conciliation Conference Under S 34 Aa(2)(a) of the Land and Environment Court Act 1979, With Parties Agreeing to Disposal Under S 34 Aa(2)(b)(ii)

Legal Issues

  1. 1 ['Whether leave should be granted to amend the modification application in accordance with amended plans reducing each proposed roof terrace to 15m2.' 'Whether the modified development was substantially the same development as that originally approved for the purposes of s 4.55(2) of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed roof terraces would cause unreasonable or unacceptable visual and acoustic privacy impacts.' 'Whether the proposed roof terraces satisfied cl 1.8 of C1 of the Waverley Development Control Plan 2012 Amendment No 5, including whether 9 George Street was development contiguous to the subject site including a roof terrace.' 'Whether Waverley Development Control Plan 2012 Amendment No. 6 should affect the determination in the public interest.' 'Whether approval of the roof terraces would create an undesirable precedent.']

Ratio Decidendi

The Court granted the modification because the amended proposal remained substantially the same development as originally approved, each roof terrace was limited to 15m2, and the exception provisions in cl 1.8(e) of the Waverley Development Control Plan 2012 Amendment No 5 were satisfied. Although the roof terraces would create visual privacy impacts, particularly in relation to the fourth floor of 5 Bulga Road, those impacts were not unreasonable or unacceptable having regard to the built form context, existing mutual overlooking, elevated view-seeking development, roof terraces nearby at George Street, the siting and parapeted roof form, and access arrangements indicating casual and...

Court Disposition

Appeal upheld; modification application granted.

Orders

  • ['Leave is granted to the applicant to amend the modification application in accordance with Drawing A7 Proposed Roof Terrace Plan Revision D dated 22 November 2018 and Drawing A11 East Elevation Revision D dated 22 November 2018.' 'The appeal is upheld.' 'The application to modify development consent No 116/2014 by...