Donaldson v North Sydney Council [2008] NSWLEC 1264

Donaldson v North Sydney Council [2008] NSWLEC 1264

The proposed fourth storey did not comply with the applicable height and building height plane controls and would cause severe to devastating loss of views, particularly from Unit 20 at 7 Highview Avenue. The approved three-storey building was to be treated as a given fact, so the relevant impact was the additional fourth floor. Even a reduced complying fourth floor would provide only minor benefit to the applicant and would not justify the severe view impact it would cause. The appeals were therefore dismissed and both applications refused.

Jurisdiction
Australia
Judgment Date
04 July 2008
Procedural Posture
Development Application Appeal and S96 Modification Appeal / Appeals Against Refusal of a S96 Application and Refusal or Deemed Refusal of a Development Application, Heard Together
Outcome
Appeals dismissed; s96 application refused; development application refused.
Legal Topics
['development Application' 'section 96 Modification' 'building Height Controls' 'building Height Plane' 'view Impact' 'view Sharing']
['planning and Environment' 'development Control'] ['development Application' 'section 96 Modification' 'building Height Controls' 'building Height Plane' 'view Impact' 'view Sharing']

Case Brief

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Procedural Posture

Development Application Appeal and S96 Modification Appeal / Appeals Against Refusal of a S96 Application and Refusal or Deemed Refusal of a Development Application, Heard Together

Legal Issues

  1. 1 ['Whether the s96 application was for substantially the same development as the approved development.' 'Whether the proposed fourth storey should be approved despite breaching the maximum building height control and building height plane control.' 'Whether the proposed fourth storey would have an unacceptable impact on views from neighbouring properties.' 'Whether the Court should assess only the impact of the proposed fourth floor or reconsider the impact of the approved three-storey building and the proposed fourth floor together.']

Ratio Decidendi

The proposed fourth storey did not comply with the applicable height and building height plane controls and would cause severe to devastating loss of views, particularly from Unit 20 at 7 Highview Avenue. The approved three-storey building was to be treated as a given fact, so the relevant impact was the additional fourth floor. Even a reduced complying fourth floor would provide only minor benefit to the applicant and would not justify the severe view impact it would cause. The appeals were therefore dismissed and both applications refused.

Court Disposition

Appeals dismissed; s96 application refused; development application refused.

Orders

  • ['The appeals are dismissed.' 'The application, pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (the EPA Act) to amend the existing consent for a three-storey apartment building on lot 2 DP 377483, known as 1 Premier Street, Neutral Bay by adding a fourth storey is determined by refusal.'...