McAuliffe v Leichhardt Municipal Council [2004] NSWLEC 723

McAuliffe v Leichhardt Municipal Council [2004] NSWLEC 723

The originally proposed deletion of condition 4(a) would have caused further adverse overshadowing to No. 14 Turner Street, where the approved development was already at the upper limit of acceptability. However, the amended plans achieved the same outcome for No. 14 as condition 4(a), with less overshadowing and slightly less bulk, and the Cardwell Street elevation was acceptable for streetscape and heritage reasons. Condition 4(d) could be replaced with wording requiring the railing detail to be to the council's satisfaction before issue of a construction certificate.

Jurisdiction
Australia
Judgment Date
21 December 2004
Procedural Posture
Appeal Under S 96 of the Environmental Planning and Assessment Act 1979 in Respect of Modification of a Development Consent / Judgment After Hearing
Outcome
Appeal allowed; development consent modified; no order as to costs.
Legal Topics
['modification of Development Consent' 'conditions of Consent' 'overshadowing of Adjoining Property' 'streetscape Appearance' 'heritage Considerations']
['planning and Environmental Law'] ['modification of Development Consent' 'conditions of Consent' 'overshadowing of Adjoining Property' 'streetscape Appearance' 'heritage Considerations']

Case Brief

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Procedural Posture

Appeal Under S 96 of the Environmental Planning and Assessment Act 1979 in Respect of Modification of a Development Consent / Judgment After Hearing

Legal Issues

  1. 1 ['Whether condition 4(a), requiring reduction of the eave height of the first floor addition, should be deleted from the development consent.' 'Whether condition 4(d), requiring the proposed cast iron railing to match the existing railing at No. 14 Turner Street, should be deleted or modified.' 'Whether the proposed modifications would cause unacceptable overshadowing, bulk or streetscape impacts.']

Ratio Decidendi

The originally proposed deletion of condition 4(a) would have caused further adverse overshadowing to No. 14 Turner Street, where the approved development was already at the upper limit of acceptability. However, the amended plans achieved the same outcome for No. 14 as condition 4(a), with less overshadowing and slightly less bulk, and the Cardwell Street elevation was acceptable for streetscape and heritage reasons. Condition 4(d) could be replaced with wording requiring the railing detail to be to the council's satisfaction before issue of a construction certificate.

Court Disposition

Appeal allowed; development consent modified; no order as to costs.

Orders

  • ['The appeal is allowed.' 'The development consent granted by the council on 17 December 2003 (DA 03/155) is modified as follows: (1) In condition 1(a), delete "revision G dated 12 September 2003" and insert instead "revision H dated 7 December 2004". (2) Delete condition 4(a). (3) Delete condition 4(d) and insert...