Modog Pty Limited v North Sydney Council No. 2 [2017] NSWLEC 1598

Modog Pty Limited v North Sydney Council No. 2 [2017] NSWLEC 1598

The seven storey proposal was excessive in height and contrary to the existing or desired future character of the locality, particularly because of its prominent position on a steeply sloping site, its impact on views of the suspension bridge pylons, and its impact on the setting of the adjoining heritage item. However, with Level 6 deleted and replaced by the inset penthouse level, reducing the ridge to RL 65.55, the amended building envelope satisfactorily resolved the bulk and scale concerns and was otherwise an appropriate redevelopment of the site with existing use rights. The appeal was therefore upheld and the development application approved subject to conditions.

Jurisdiction
Australia
Judgment Date
24 October 2017
Procedural Posture
Class 1 Appeal Pursuant to S 97(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No. 339/16 / Final Judgment After Mandatory Conciliation Under S 34 of the Land and Environment Court Act 1979 Was Terminated and Amended Plans Were Filed
Outcome
Appeal upheld; development application approved subject to conditions of consent.
Legal Topics
['development Application for Residential Flat Building' 'existing Use Rights' 'height, Bulk and Scale' 'view Impacts' 'amenity Impacts' 'tree Protection and Removal' 'impact on Adjoining Heritage Item' 'conditions of Consent']
['planning and Environment Law' 'development Control' 'heritage Conservation'] ['development Application for Residential Flat Building' 'existing Use Rights' 'height, Bulk and Scale' 'view Impacts' 'amenity Impacts' 'tree Protection and Removal' 'impact on Adjoining Heritage Item' 'conditions of Consent']

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Procedural Posture

Class 1 Appeal Pursuant to S 97(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No. 339/16 / Final Judgment After Mandatory Conciliation Under S 34 of the Land and Environment Court Act 1979 Was Terminated and Amended Plans Were Filed

Legal Issues

  1. 1 ['Whether the proposed residential flat building was acceptable having regard to existing use rights and the R2 Low Density Residential context.' 'Whether the height, bulk and scale of the proposal were compatible with the existing or desired future character of the locality.' 'Whether the proposal would cause unacceptable impacts on views from neighbouring dwellings, including views of the pylons of the suspension bridge.' 'Whether the proposal would detrimentally impact the heritage significance and setting of the adjoining heritage item at 5 The Boulevarde.' 'Whether the proposal adequately addressed site coverage, landscaped area, setbacks, excavation, amenity impacts and significant trees.']

Ratio Decidendi

The seven storey proposal was excessive in height and contrary to the existing or desired future character of the locality, particularly because of its prominent position on a steeply sloping site, its impact on views of the suspension bridge pylons, and its impact on the setting of the adjoining heritage item. However, with Level 6 deleted and replaced by the inset penthouse level, reducing the ridge to RL 65.55, the amended building envelope satisfactorily resolved the bulk and scale concerns and was otherwise an appropriate redevelopment of the site with existing use rights. The appeal was therefore upheld and the development application approved subject to conditions.

Court Disposition

Appeal upheld; development application approved subject to conditions of consent.

Orders

  • ['The appeal is upheld.' 'Development Application No. 339/16 for a residential flat building at 1 The Boulevarde, Cammeray is approved, subject to the conditions of consent at Annexure A.' 'The exhibits, other than exhibit 1, are returned.']