Broderick v Randwick City Council [2012] NSWLEC 1306

Broderick v Randwick City Council [2012] NSWLEC 1306

The modification was acceptable because the proposed building satisfied the SEPP ARH 8.5 metre building height requirement, there was no overall height increase, reliance on the DCP 3.5 metre external wall height control was questionable and in any event not determinative, the additional wall height would not unacceptably add to height or bulk or adversely affect the residential environment or amenity of existing residents, and the precedent contention was not supported where the council had not consistently applied the 3.5 metre control.

Jurisdiction
Australia
Judgment Date
08 October 2012
Procedural Posture
Class 1 Appeal Against an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify Development Consent Da/436/2011 / Final Decision After Hearing
Outcome
Appeal upheld; modification application approved subject to Annexure A.
Legal Topics
['modification of Development Consent' 'secondary Dwelling' 'height and Visual Bulk' 'zone Objectives' 'precedent' 'state Environmental Planning Policy (affordable Rental Housing) 2009']
['planning and Environment Law'] ['modification of Development Consent' 'secondary Dwelling' 'height and Visual Bulk' 'zone Objectives' 'precedent' 'state Environmental Planning Policy (affordable Rental Housing) 2009']

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Procedural Posture

Class 1 Appeal Against an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify Development Consent Da/436/2011 / Final Decision After Hearing

Legal Issues

  1. 1 ['Whether the proposed 600 mm increase in wall height for the secondary dwelling created unacceptable height and visual bulk impacts.' 'Whether the modification was inconsistent with the Residential 2A zone objectives under Randwick Local Environmental Plan 1998.' 'Whether approval would create an unacceptable precedent.']

Ratio Decidendi

The modification was acceptable because the proposed building satisfied the SEPP ARH 8.5 metre building height requirement, there was no overall height increase, reliance on the DCP 3.5 metre external wall height control was questionable and in any event not determinative, the additional wall height would not unacceptably add to height or bulk or adversely affect the residential environment or amenity of existing residents, and the precedent contention was not supported where the council had not consistently applied the 3.5 metre control.

Court Disposition

Appeal upheld; modification application approved subject to Annexure A.

Orders

  • ['The appeal is upheld.' 'The application to modify development consent DA/436/2011 for "Alterations and first floor addition to the existing garage including new secondary dwelling at first floor level" at 8 Hincks Road Kingsford is approved subject to the modification in Annexure A.' 'The exhibits are returned...