Misho & Associates Pty Ltd v Waverley Council [2005] NSWLEC 93

Misho & Associates Pty Ltd v Waverley Council [2005] NSWLEC 93

The modifications result in a development that is substantially the same as previously approved; the increase in floor area does not alter the amenity, streetscape, or character to an unacceptable degree, and view impacts are minimal and reasonable. The objections regarding FSR exceedance, amenity, and view loss do not warrant refusing the modification. Costs are not awarded as the council's position was reasonably arguable.

Jurisdiction
Australia
Judgment Date
04 March 2005
Procedural Posture
Appeal / Judgment
Outcome
Appeal upheld. Modification allowed. Costs application dismissed.
Legal Topics
['section 96 Modification' 'development Consent' 'floor Space Ratio (fsr)' 'view Impact' 'amenity' 'development Control Plan']
['planning and Environment'] ['section 96 Modification' 'development Consent' 'floor Space Ratio (fsr)' 'view Impact' 'amenity' 'development Control Plan']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ["Whether the proposal is 'substantially the same' as required by s 96 Environmental Planning and Assessment Act 1979" 'Whether the proposed increase in floor area impacts on the amenity of adjoining residents or is acceptable under Development Control Plan No. 2' 'Whether the reconfigured upper level results in any view loss from neighbouring properties or the public domain' 'Whether the proposed changes are in the public interest given objections received']

Ratio Decidendi

The modifications result in a development that is substantially the same as previously approved; the increase in floor area does not alter the amenity, streetscape, or character to an unacceptable degree, and view impacts are minimal and reasonable. The objections regarding FSR exceedance, amenity, and view loss do not warrant refusing the modification. Costs are not awarded as the council's position was reasonably arguable.

Court Disposition

Appeal upheld. Modification allowed. Costs application dismissed.

Orders

  • ['The appeal is upheld.' 'The s 96 modification to Development Consent No. 891/2002 is allowed in accordance with specified drawings.' 'The exhibits may be returned except Exhibits 1 and A.' 'The application for costs is dismissed.']