Shulkin v Waverley Council [2009] NSWLEC 1290

Shulkin v Waverley Council [2009] NSWLEC 1290

The section 96 modification was approved because the amended proposal was substantially the same development as that previously approved, the additional lower ground floor space would be below ground and within the approved building footprint, would not adversely affect neighbour amenity, streetscape, views, height, bulk or scale, and the numerical increase in floor space ratio non-compliance was reasonable in the circumstances, especially given Council support, resident objectors' lack of objection subject to conditions, and the imposed conditions.

Jurisdiction
Australia
Judgment Date
01 September 2009
Procedural Posture
Section 96 Modification Appeal Under the Environmental Planning and Assessment Act 1979 / Judgment on Consent Orders After Hearing
Outcome
Appeal upheld; section 96 modification application approved subject to conditions; applicant ordered to pay Council's costs resulting from amended plans.
Legal Topics
['section 96 Modification' 'dual Occupancy Development' 'floor Space Ratio' 'excavation' 'amenity Impacts' 'development Control Plan Compliance']
['planning and Environment' 'development Consent Modification'] ['section 96 Modification' 'dual Occupancy Development' 'floor Space Ratio' 'excavation' 'amenity Impacts' 'development Control Plan Compliance']

Case Brief

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Procedural Posture

Section 96 Modification Appeal Under the Environmental Planning and Assessment Act 1979 / Judgment on Consent Orders After Hearing

Legal Issues

  1. 1 ['Whether the proposed modification was substantially the same development as previously approved by the Court.' 'Whether the amended proposal should be approved having regard to the matters in section 79C of the Environmental Planning and Assessment Act 1979.' 'Whether increased sub-ground floor area, excavation and floor space ratio non-compliance would cause unacceptable amenity, streetscape, bulk, scale or public interest impacts.']

Ratio Decidendi

The section 96 modification was approved because the amended proposal was substantially the same development as that previously approved, the additional lower ground floor space would be below ground and within the approved building footprint, would not adversely affect neighbour amenity, streetscape, views, height, bulk or scale, and the numerical increase in floor space ratio non-compliance was reasonable in the circumstances, especially given Council support, resident objectors' lack of objection subject to conditions, and the imposed conditions.

Court Disposition

Appeal upheld; section 96 modification application approved subject to conditions; applicant ordered to pay Council's costs resulting from amended plans.

Orders

  • ['The appeal is upheld in accordance with the amended plans filed with the Court, Exhibit A.' 'Section 96 application no DA 683/07/A for additional sub ground floor area at the lower ground floor level of the property known as 13 St Thomas Street, Bronte and lodged with the Respondent on 28 January 2009 is approved...