Molnar v Woollahra Council [2017] NSWLEC 1041

Molnar v Woollahra Council [2017] NSWLEC 1041

The removal of Tree 5 would cause significant environmental and scenic impacts, contrary to planning controls and the objectives for retaining a canopy and landscape character. Proposed modifications to height, footprint of the deck and pool, and reduction in deep soil area would result in unacceptable amenity and visual impacts exceeding permissible controls. However, internal modifications, solar panels (if not visible from the street), lift, cellar, and walls could be approved subject to conditions and amended plans.

Jurisdiction
Australia
Judgment Date
07 February 2017
Procedural Posture
Appeal Against Refusal of Modification of Development Consent (class 1) / Final Orders After Hearing and Directions
Outcome
Appeal upheld in part; modification application determined by approving only selected modifications subject to amended plans and conditions. Proposed removal of Tree 5 and deck/pool enlargement refused.
Legal Topics
['modification of Development Consent' 'tree Removal' 'landscape and Deep Soil Controls' 'height, Bulk and Scale Planning Controls' 'amenity Impacts' 'sydney Harbour Scenic Quality']
['planning Law' 'environmental Law' 'administrative Law'] ['modification of Development Consent' 'tree Removal' 'landscape and Deep Soil Controls' 'height, Bulk and Scale Planning Controls' 'amenity Impacts' 'sydney Harbour Scenic Quality']

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Procedural Posture

Appeal Against Refusal of Modification of Development Consent (class 1) / Final Orders After Hearing and Directions

Legal Issues

  1. 1 ['Whether the proposed modification constitutes minimal environmental impact' 'Whether the development is substantially the same as the original consent' 'Retention or removal of prescribed tree (Tree 5)' 'Compliance with deep soil, landscaping, height, bulk, and scale controls' 'Visual and amenity impacts on adjoining properties and Sydney Harbour' 'Whether the proposal is consistent with LEP, DCP, and scenic quality objectives']

Ratio Decidendi

The removal of Tree 5 would cause significant environmental and scenic impacts, contrary to planning controls and the objectives for retaining a canopy and landscape character. Proposed modifications to height, footprint of the deck and pool, and reduction in deep soil area would result in unacceptable amenity and visual impacts exceeding permissible controls. However, internal modifications, solar panels (if not visible from the street), lift, cellar, and walls could be approved subject to conditions and amended plans.

Court Disposition

Appeal upheld in part; modification application determined by approving only selected modifications subject to amended plans and conditions. Proposed removal of Tree 5 and deck/pool enlargement refused.

Orders

  • ['Applicant to file amended plans deleting modifications to deck/pool and retaining Tree 5' 'Council to file amended conditions accordingly' 'Modification application DA174.2014/4 approved only as per Annexure A and B, excluding deck/pool/Tree 5 removal' 'Development consent now subject to consolidated and modified...