Nader v Sutherland Shire Council (No 4) [2009] NSWLEC 1064

Nader v Sutherland Shire Council (No 4) [2009] NSWLEC 1064

The modification appeal was upheld only in part because, although the parties agreed the modified development was substantially the same development, some proposed modifications were unacceptable on their merits. The modified lift shaft room would appear as an additional storey and add unacceptable height, bulk and...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
14 January 2009
Procedural Posture
Three Related Appeals Concerning a S 96 Modification Application, a S 149 F Building Certificate Application, and a S 121 N Order Under the Environmental Planning and Assessment Act 1979 / Judgment and Final Orders
Outcome
Appeal No 10411 of 2008 was upheld in part; Appeal No 10683 of 2008 was dismissed; Appeal No 10746 of 2008 was dismissed.
Legal Topics
['unauthorised Building Works' 'modification Application' 'building Certificate Application' 'order Requiring Compliance Before Occupation' 'substantially the Same Development' 'building Height, Bulk and Scale' 'visual Impact' 'privacy Impacts' 'rooftop Terrace']
['environmental Planning and Assessment' 'development Consent Modification' 'building Regulation'] ['unauthorised Building Works' 'modification Application' 'building Certificate Application' 'order Requiring Compliance Before Occupation' 'substantially the Same Development' 'building Height, Bulk and Scale' 'visual Impact' 'privacy Impacts' 'rooftop Terrace']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Three Related Appeals Concerning a S 96 Modification Application, a S 149 F Building Certificate Application, and a S 121 N Order Under the Environmental Planning and Assessment Act 1979 / Judgment and Final Orders

Legal Issues

  1. 1 ['Whether Development Consent 03/0981 should be modified under s 96 of the Environmental Planning and Assessment Act 1979 to approve unauthorised and altered building works.' 'Whether the consent as modified was substantially the same development as originally approved.' 'Whether the proposed roof structures and rooftop terrace were acceptable having regard to height, bulk, scale, streetscape character, visual impact and privacy.' 'Whether the Building Certificate appeal and the appeal against the s 121N order should be dismissed in light of the findings on the modification appeal.']

Ratio Decidendi

The modification appeal was upheld only in part because, although the parties agreed the modified development was substantially the same development, some proposed modifications were unacceptable on their merits. The modified lift shaft room would appear as an additional storey and add unacceptable height, bulk and scale contrary to the relevant height objectives; the rooftop terrace was refused because of privacy, compliance, character and amenity concerns; and the air-conditioning plant room required height reduction. Other modifications, including the parapet as constructed, additional excavation and floor area for storage, garage windows and minor modifications, were acceptable...

Court Disposition

Appeal No 10411 of 2008 was upheld in part; Appeal No 10683 of 2008 was dismissed; Appeal No 10746 of 2008 was dismissed.

Orders

  • ['For Appeal No 10411 of 2008: The appeal is upheld in part.' 'For Appeal No 10411 of 2008: Development consent No 03/0981, issued by the Council on 29 December 2003, is modified by the deletion of condition 1 of that consent, and its replacement by conditions 1, 1A and 1B in the conditions at Annexure A to these...