The Benevolent Society v Waverley Council [2010] NSWLEC 1367

The Benevolent Society v Waverley Council [2010] NSWLEC 1367

The modification application was refused because the additional fifth level would not retain, complement and sensitively harmonise with Scarba Home, would encroach on its curtilage and setting, and would unacceptably impact its heritage significance; and because the proposed two additional units would cause significant and unreasonable view loss from living areas of existing units. The social housing benefits, while indisputable, did not outweigh those heritage and view loss impacts.

Jurisdiction
Australia
Judgment Date
10 December 2010
Procedural Posture
Appeal; Application to Modify a Consent Under S 96(8) of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment
Outcome
Appeal dismissed; application to modify the consent refused.
Legal Topics
['modification of Development Consent' 'housing for Seniors or People With a Disability' 'heritage Significance' 'view Loss' 'planning Merits']
['environmental Planning' 'land and Environment' 'heritage Conservation'] ['modification of Development Consent' 'housing for Seniors or People With a Disability' 'heritage Significance' 'view Loss' 'planning Merits']

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Procedural Posture

Appeal; Application to Modify a Consent Under S 96(8) of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the proposed additional fifth level would unacceptably impact the heritage significance of Scarba Home and its grounds.' 'Whether the proposed additional two units would cause unacceptable view loss from units 23, 27 and 28 of 26-30 Ocean Street.' 'Whether social housing benefits outweighed the heritage and view loss impacts of the proposed modification.' 'Whether comments in the previous judgment about a possible five storey building bound or influenced the determination of the modification application.']

Ratio Decidendi

The modification application was refused because the additional fifth level would not retain, complement and sensitively harmonise with Scarba Home, would encroach on its curtilage and setting, and would unacceptably impact its heritage significance; and because the proposed two additional units would cause significant and unreasonable view loss from living areas of existing units. The social housing benefits, while indisputable, did not outweigh those heritage and view loss impacts.

Court Disposition

Appeal dismissed; application to modify the consent refused.

Orders

  • ['The appeal is dismissed.' 'The application to modify the consent granted by the Court on 14 April 2010 (The Benevolent Society v Waverley Council [2010] NSW LEC 1082) for the demolition of a number of existing structures, and the construction of three new buildings, and alterations and addition to an existing...