Neville Joel Katz v Waverley Council [2017] NSWLEC 1266

Neville Joel Katz v Waverley Council [2017] NSWLEC 1266

The modification application was refused because extending the balcony would protrude beyond the adjoining properties and the predominant rear building alignment, would encourage built form creep toward the coastal walk and reserve, would adversely affect public and neighbouring amenity, and would create a real precedent inconsistent with the WDCP setback objectives and the Council's consistent administration of those controls. After considering the relevant matters under s 79C, the Court dismissed the appeal.

Jurisdiction
Australia
Judgment Date
31 January 2017
Procedural Posture
Class 1 Appeal Against Refusal of a Section 96(2) Modification Application to Amend a Development Consent Condition / Final Determination of Appeal
Outcome
Appeal dismissed; consent to modify condition 2(b) refused.
Legal Topics
['rear Building Line Setback' 'balcony Extension' 'waverley Development Control Plan 2012' 'undesirable Precedent' 'visual and Acoustic Privacy' 'public Interest']
['environmental and Planning Law' 'development Consent Modification'] ['rear Building Line Setback' 'balcony Extension' 'waverley Development Control Plan 2012' 'undesirable Precedent' 'visual and Acoustic Privacy' 'public Interest']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of a Section 96(2) Modification Application to Amend a Development Consent Condition / Final Determination of Appeal

Legal Issues

  1. 1 ['Whether condition 2(b) of development consent DA 253/2014 should be modified to permit the ground floor balcony depth to be extended from 1.8m to 3m.' 'Whether the proposed extension would be consistent with the predominant rear building line under Part C cl 1.4 of the Waverley Development Control Plan 2012 (Amendment No 3).' 'Whether approval would create an undesirable precedent by resetting the rear building alignment closer to the coastal walk and reserve.' 'Whether the proposal should be refused after consideration of relevant matters under s 79C of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

The modification application was refused because extending the balcony would protrude beyond the adjoining properties and the predominant rear building alignment, would encourage built form creep toward the coastal walk and reserve, would adversely affect public and neighbouring amenity, and would create a real precedent inconsistent with the WDCP setback objectives and the Council's consistent administration of those controls. After considering the relevant matters under s 79C, the Court dismissed the appeal.

Court Disposition

Appeal dismissed; consent to modify condition 2(b) refused.

Orders

  • ['The appeal is dismissed.' 'The exhibits are returned.']