Mardini v Hurstville City Council [2003] NSWLEC 344

Mardini v Hurstville City Council [2003] NSWLEC 344

Although the roof modification did not make the development other than substantially the same development for s96(2)(a) purposes, the additional constructed roof height had an obvious and significant qualitative impact on the expansive district and horizon view from the rear patio of 649 Forest Road, which was a significant primary living area during warmer months. Because compliance with Commissioner Brown's condition 6 was feasible and would have reduced the impact on the view, it was reasonable to refuse the modification and require compliance with that condition.

Jurisdiction
Australia
Judgment Date
17 December 2003
Procedural Posture
Appeal Pursuant to S96(2)(a) of the Environmental Planning and Assessment Act 1979 Concerning Refusal of an Application to Modify a Development Consent Condition / Judgment After Conventional Hearing Pursuant to S36 of the Land and Environment Court Act 1979
Outcome
Appeal dismissed; modification application refused.
Legal Topics
['modification of Development Consent' 'dual Occupancy Development' 'view Loss' 'substantially the Same Development' 'bulk and Scale of Roof Form']
['environmental Planning and Development Control' 'land and Environment'] ['modification of Development Consent' 'dual Occupancy Development' 'view Loss' 'substantially the Same Development' 'bulk and Scale of Roof Form']

Case Brief

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Procedural Posture

Appeal Pursuant to S96(2)(a) of the Environmental Planning and Assessment Act 1979 Concerning Refusal of an Application to Modify a Development Consent Condition / Judgment After Conventional Hearing Pursuant to S36 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the proposed variation would result in a development substantially the same as the development approved by Commissioner Brown and thus be permissible pursuant to s96(2)(a) of the Environmental Planning and Assessment Act 1979' 'Whether the roof as constructed caused unacceptable view loss from 649 Forest Road' 'Whether the bulk and scale of the roof as constructed were acceptable']

Ratio Decidendi

Although the roof modification did not make the development other than substantially the same development for s96(2)(a) purposes, the additional constructed roof height had an obvious and significant qualitative impact on the expansive district and horizon view from the rear patio of 649 Forest Road, which was a significant primary living area during warmer months. Because compliance with Commissioner Brown's condition 6 was feasible and would have reduced the impact on the view, it was reasonable to refuse the modification and require compliance with that condition.

Court Disposition

Appeal dismissed; modification application refused.

Orders

  • ['The appeal is dismissed.' 'Development application No 20010492 (AD 48/03) to modify the conditions of consent for the approved dual occupancy development at 1 Tournay Street, Peakhurst, is refused.' 'The exhibits, with the exception of Exhibits 4 and A, may be returned.']