Shields v Waverley Council [2011] NSWLEC 1115

Shields v Waverley Council [2011] NSWLEC 1115

The modification application was approved because, on a holistic assessment of the Waverley Development Control Plan 2010 and the relevant planning controls, the basement enlargement and associated floor space ratio exceedance would not add visible bulk, would not adversely affect streetscape or adjoining amenity, and would remain compatible with the surrounding area. The excavation could comply with the 3 metre depth, 1 metre setback and 50% footprint controls, and geotechnical, construction management and dilapidation conditions would minimise impacts. Deletion of highlight windows and the non-openable skylights meant the basement would not become habitable space, and the proposal was...

Jurisdiction
Australia
Judgment Date
28 April 2011
Procedural Posture
Class 1 Appeal Concerning a S 96 Modification Application / On Site Hearing; Extempore Judgment Subsequently Published
Outcome
Appeal upheld; s 96 modification application approved subject to conditions.
Legal Topics
['s 96 Modification Application' 'development Consent' 'excavation Impacts' 'floor Space Ratio' 'development Control Plan Compliance' 'adjoining Owner Objections']
['planning and Environment Law'] ['s 96 Modification Application' 'development Consent' 'excavation Impacts' 'floor Space Ratio' 'development Control Plan Compliance' 'adjoining Owner Objections']

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Procedural Posture

Class 1 Appeal Concerning a S 96 Modification Application / On Site Hearing; Extempore Judgment Subsequently Published

Legal Issues

  1. 1 ['Whether the s 96 modification application to enlarge the basement area by additional excavation should be approved.' 'Whether the proposed excavation was excessive or contrary to Waverley Development Control Plan 2010 controls.' 'Whether the increased basement area and floor space ratio represented overdevelopment or would adversely affect adjoining properties.' 'Whether geotechnical, construction, truck movement and dilapidation concerns could be addressed by conditions of consent.' 'Whether the basement area could be used for habitable purposes and whether windows or skylights should be deleted or conditioned.' 'Whether approval would create an undesirable precedent or be contrary to the public interest.']

Ratio Decidendi

The modification application was approved because, on a holistic assessment of the Waverley Development Control Plan 2010 and the relevant planning controls, the basement enlargement and associated floor space ratio exceedance would not add visible bulk, would not adversely affect streetscape or adjoining amenity, and would remain compatible with the surrounding area. The excavation could comply with the 3 metre depth, 1 metre setback and 50% footprint controls, and geotechnical, construction management and dilapidation conditions would minimise impacts. Deletion of highlight windows and the non-openable skylights meant the basement would not become habitable space, and the proposal was...

Court Disposition

Appeal upheld; s 96 modification application approved subject to conditions.

Orders

  • ['The appeal in respect of No 84 Queens Park Road, Queens Park is upheld.' "The s 96 modification application to enlarge the basement area is approved subject to the consolidated conditions in Annexure 'A'." 'The exhibits are returned to the parties with the exception of the amended plans and conditions.']