Perini v North Sydney Council [2010] NSWLEC 1325

Perini v North Sydney Council [2010] NSWLEC 1325

The s 96 modification application was approved only subject to conditions because the increased roof height and deletion of the chamfer did not cause unacceptable heritage or view impacts, but the enlarged and relocated garage, unauthorised pool, pool equipment room and excess paving unacceptably reduced landscaped area and adversely affected Keynsham's landscape setting. Conditions limiting the garage height, requiring removal of the pool, pool equipment room and excess driveway paving, requiring replacement soft landscaping, and requiring a higher lower garden retaining wall were necessary to make the modification acceptable.

Jurisdiction
Australia
Judgment Date
25 November 2010
Procedural Posture
Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of an Application Under S 96(2) to Modify Development Consent / Judgment After Hearing
Outcome
Appeal upheld in part; s 96 modification application approved subject to modified conditions.
Legal Topics
['modification of Development Consent' 'unauthorised Works' 'heritage Impact' 'residential Amenity' 'view Sharing' 'building Height' 'building Height Plane' 'landscaped Area']
['planning and Environment Law' 'development Consent' 'heritage Conservation'] ['modification of Development Consent' 'unauthorised Works' 'heritage Impact' 'residential Amenity' 'view Sharing' 'building Height' 'building Height Plane' 'landscaped Area']

Case Brief

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

Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of an Application Under S 96(2) to Modify Development Consent / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed changes have an acceptable impact on the heritage significance of Keynsham and its landscape setting, particularly views to and from the site' 'Whether the proposed changes provide adequate landscaping' 'Whether the proposed changes adversely impact on residential amenity, particularly view loss to 31A Shellcove Road' 'Whether non-compliance with building height, building height plane and landscaped area controls was acceptable']

Ratio Decidendi

The s 96 modification application was approved only subject to conditions because the increased roof height and deletion of the chamfer did not cause unacceptable heritage or view impacts, but the enlarged and relocated garage, unauthorised pool, pool equipment room and excess paving unacceptably reduced landscaped area and adversely affected Keynsham's landscape setting. Conditions limiting the garage height, requiring removal of the pool, pool equipment room and excess driveway paving, requiring replacement soft landscaping, and requiring a higher lower garden retaining wall were necessary to make the modification acceptable.

Court Disposition

Appeal upheld in part; s 96 modification application approved subject to modified conditions.

Orders

  • ['The appeal is upheld in part.' 'The application under s 96 of the Environmental Planning and Assessment Act 1979 to modify development consent (DA/106/07) to construct a new dwelling at 29A Shellcove Road, Neutral Bay is approved. The consent is modified as set out in Annexure A.' 'The exhibit, except Exhibits B...