Bernstein v Waverley Council [2011] NSWLEC 1316

Bernstein v Waverley Council [2011] NSWLEC 1316

The modification application merited conditional consent because it was substantially the same development, the additional floor area was contained within the approved building footprint and largely below ground or within approved voids, the numerical FSR and minor excavation/setback non-compliances did not create adverse impacts on height, bulk, scale, streetscape, neighbouring amenity, traffic or parking, and the objections did not provide substantive evidence warranting refusal.

Jurisdiction
Australia
Judgment Date
13 September 2011
Procedural Posture
Class 1 Appeal Against Refusal of a S 96 Modification Application Concerning Development Consent for Four Dual Occupancy Dwellings / Consent Orders
Outcome
Appeal upheld; modification application approved by consent subject to conditions; each party to pay its own costs.
Legal Topics
['development Modification' 'dual Occupancy Development' 'floor Space Ratio' 'development Control Plan Compliance' 'excavation Controls' 'neighbour Amenity' 'public Interest']
['planning and Environment Law'] ['development Modification' 'dual Occupancy Development' 'floor Space Ratio' 'development Control Plan Compliance' 'excavation Controls' 'neighbour Amenity' 'public Interest']

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Procedural Posture

Class 1 Appeal Against Refusal of a S 96 Modification Application Concerning Development Consent for Four Dual Occupancy Dwellings / Consent Orders

Legal Issues

  1. 1 ['Whether the s 96 modification application related to substantially the same development.' 'Whether the increased basement footprint and infill of void areas to create additional bedrooms should be approved despite numerical non-compliance with the DCP floor space ratio control.' 'Whether the modified development would be compatible with the character of the area and the objectives of the size, bulk and excavation controls.' 'Whether objections concerning amenity, traffic, parking, density, valuation impacts and precedent warranted refusal.']

Ratio Decidendi

The modification application merited conditional consent because it was substantially the same development, the additional floor area was contained within the approved building footprint and largely below ground or within approved voids, the numerical FSR and minor excavation/setback non-compliances did not create adverse impacts on height, bulk, scale, streetscape, neighbouring amenity, traffic or parking, and the objections did not provide substantive evidence warranting refusal.

Court Disposition

Appeal upheld; modification application approved by consent subject to conditions; each party to pay its own costs.

Orders

  • ['The appeal is upheld.' 'The modification application DA/305/2010-A is approved for an increase to the basement footprint to provide for storage areas, laundry and rainwater tank or storage room, and the construction of an additional bedroom in the void areas on the first floor area of each of the four occupancies...