OandE Developments Pty Ltd v Burwood Council [2022] NSWLEC 1108

OandE Developments Pty Ltd v Burwood Council [2022] NSWLEC 1108

Although the proposal satisfied the s 4.56 substantially the same development test and the sixth storey infill was acceptable, the modification application was refused because the rooftop lift overrun and stair elements were not integrated into the architectural character or roof design, were visually intrusive and detracted from the corner element, and the northern third storey addition failed to minimise amenity impacts due to the imposing unrelieved wall close to the boundary with 41 Willee Street.

Jurisdiction
Australia
Judgment Date
03 March 2022
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Principal Judgment After Hearing; Appeal Not Subject to Conciliation
Outcome
The appeal is dismissed and Modification Application No. 2018/48/03 is refused.
Legal Topics
['modification Application' 'substantially the Same Development Test' 'building Design and Roof Integration' 'amenity Impacts on Adjoining Low Density Residential Zone' 'residential Apartment Development' 'parking Shortfall and Car Share Proposal']
['environmental and Planning Law' 'development Consent Modification' 'land Use Planning'] ['modification Application' 'substantially the Same Development Test' 'building Design and Roof Integration' 'amenity Impacts on Adjoining Low Density Residential Zone' 'residential Apartment Development' 'parking Shortfall and Car Share Proposal']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Principal Judgment After Hearing; Appeal Not Subject to Conciliation

Legal Issues

  1. 1 ['Whether the proposal satisfied the substantially the same development jurisdictional test under s 4.56 of the Environmental Planning and Assessment Act 1979.' 'Whether the infill of the sixth storey was contrary to the objectives for building design in section 3.2.1 of the Burwood Development Control Plan 2012.' 'Whether the lift overrun and stair projection above the sixth storey integrated services into the roof form or resulted in excessive and visually intrusive height.' 'Whether the third storey addition in the northern portion of the site unreasonably impacted the amenity of 41 Willee Street.' 'Whether the proposal involved an unresolved residential parking shortfall and whether proposed car share spaces addressed it.']

Ratio Decidendi

Although the proposal satisfied the s 4.56 substantially the same development test and the sixth storey infill was acceptable, the modification application was refused because the rooftop lift overrun and stair elements were not integrated into the architectural character or roof design, were visually intrusive and detracted from the corner element, and the northern third storey addition failed to minimise amenity impacts due to the imposing unrelieved wall close to the boundary with 41 Willee Street.

Court Disposition

The appeal is dismissed and Modification Application No. 2018/48/03 is refused.

Orders

  • ['The appeal is dismissed.' 'Modification Application No. 2018/48/03 to modify the approved development at 319-321 Liverpool Road, Strathfield, is refused.' 'The exhibits, other than Exhibits 1, A and G, are returned.']