Silvius v Leichhardt Council [2009] NSWLEC 1193

Silvius v Leichhardt Council [2009] NSWLEC 1193

Condition 3(b) (requiring the upper floor setback) may be deleted as increasing the setback would not effectively address concerns of bulk and horizontality given the approved built form. Condition 3(a) (reducing roof height) should be retained because lowering the parapet minimises unacceptable view loss from neighbouring units, especially 12 Thames Street, and aligns with objectives in the DCP and principles in Tenacity Consulting. The applicant did not provide sufficient evidence that further restriction on view sharing would unreasonably impact amenity.

Jurisdiction
Australia
Judgment Date
24 April 2009
Procedural Posture
Planning Appeal / Appeal Against Deemed Refusal (modification of Development Consent Under S 96)
Outcome
The appeal is upheld in part and dismissed in part.
Legal Topics
['development Consent Modification' 'setback Requirements' 'view Loss' 'streetscape Impact']
['environmental Planning and Development'] ['development Consent Modification' 'setback Requirements' 'view Loss' 'streetscape Impact']

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Procedural Posture

Planning Appeal / Appeal Against Deemed Refusal (modification of Development Consent Under S 96)

Legal Issues

  1. 1 ['Whether condition 3(a) (requiring reduction in roof height) should be amended' 'Whether condition 3(b) (requiring upper floor setback) should be deleted' 'Appropriate application of view sharing and streetscape planning controls']

Ratio Decidendi

Condition 3(b) (requiring the upper floor setback) may be deleted as increasing the setback would not effectively address concerns of bulk and horizontality given the approved built form. Condition 3(a) (reducing roof height) should be retained because lowering the parapet minimises unacceptable view loss from neighbouring units, especially 12 Thames Street, and aligns with objectives in the DCP and principles in Tenacity Consulting. The applicant did not provide sufficient evidence that further restriction on view sharing would unreasonably impact amenity.

Court Disposition

The appeal is upheld in part and dismissed in part.

Orders

  • ['The appeal is upheld in part and dismissed in part.' 'The application under s 96 of the Environmental Planning and Assessment Act to amend development consent (DA 07/0306) to demolish the existing house and structures and to construct a new house with associated garage and landscaping at 25A Clayton Street,...