Ray Fitz-Gibbon Architects Pty Ltd v Warringah Council [2004] NSWLEC 482

Ray Fitz-Gibbon Architects Pty Ltd v Warringah Council [2004] NSWLEC 482

Condition 48, requiring the deletion of Unit 15, is reasonable and necessary to achieve appropriate view sharing because retention of Unit 15 will have a material and adverse impact on the views enjoyed by residents opposite, and the modified design does not mitigate these impacts sufficiently.

Parties
Applicant: Ray Fitz-Gibbon Architects Pty Ltd; Respondent: Warringah Council
Jurisdiction
Australia
Judgment Date
29 September 2004
Procedural Posture
Development Consent Modification Appeal / Judgment
Outcome
Application dismissed in part; condition 48 (requiring removal of Unit 15) to be retained, subject to the opportunity for the applicant to submit amended plans for partial retention consistent with view sharing.
Legal Topics
Development Consent, Modification Application, View Sharing, Environmental Planning
Planning Law Development Consent Modification Application View Sharing Environmental Planning

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Parties

Ray Fitz-Gibbon Architects Pty Ltd

Applicant

Warringah Council

Respondent

Procedural Posture

Development Consent Modification Appeal / Judgment

Legal Issues

  1. 1 Whether condition 48, requiring deletion of Unit 15 to maintain view sharing, should be deleted or retained as part of the section 96 modification application
  2. 2 The relevance of Warringah Local Environmental Plan 2000 development standards to a section 96 modification
  3. 3 Impact of the proposal on views and residential amenity

Ratio Decidendi

Condition 48, requiring the deletion of Unit 15, is reasonable and necessary to achieve appropriate view sharing because retention of Unit 15 will have a material and adverse impact on the views enjoyed by residents opposite, and the modified design does not mitigate these impacts sufficiently.

Court Disposition

Application dismissed in part; condition 48 (requiring removal of Unit 15) to be retained, subject to the opportunity for the applicant to submit amended plans for partial retention consistent with view sharing.

Orders

  • The application to delete condition 48 is refused.
  • The applicant is to submit amended drawings showing the final configuration of the top level (Unit 15) consistent with the findings of the judgment.