Tifad Developments Pty Ltd v Woollahra Municipal Council [2009] NSWLEC 1140

Tifad Developments Pty Ltd v Woollahra Municipal Council [2009] NSWLEC 1140

The modifications were approved because, on the facts, the original consent and subsequent approved landscape material already contemplated tiered planter troughs and substantial landscaping across the front setback, the natural rocky promontory would not have remained visibly central to the approved streetscape presentation, and the modified proposal would still present as a 4-storey building set back from and elevated above the street behind cascading gardens. With conditions preventing use of structural voids as floorspace and requiring natural sandstone treatment, the development as modified was substantially the same as the original consent and did not offend the relevant LEP or DCP...

Jurisdiction
Australia
Judgment Date
06 May 2009
Procedural Posture
S 97 Appeals Against Refusal of S 96 Modification Applications / Hearing and Judgment on Appeals Concerning Da778/2004/6 and Da778/2004/7
Outcome
Both appeals upheld; modifications of consent granted subject to conditions.
Legal Topics
['section 96 Modification' 'substantially the Same Development' 'excavation' 'streetscape and Landscape Impact' 'foreshore Scenic Protection Area' 'existing Use Rights']
['planning and Environment Law' 'development Consent Modification'] ['section 96 Modification' 'substantially the Same Development' 'excavation' 'streetscape and Landscape Impact' 'foreshore Scenic Protection Area' 'existing Use Rights']

Case Brief

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Procedural Posture

S 97 Appeals Against Refusal of S 96 Modification Applications / Hearing and Judgment on Appeals Concerning Da778/2004/6 and Da778/2004/7

Legal Issues

  1. 1 ['Whether the proposed modifications would result in a development that is substantially the same as the original consent under s 96 of the Environmental Planning and Assessment Act 1979.' 'Whether the additional excavation and altered construction method would change the streetscape, landscape, height, bulk, scale or desired future character impacts of the approved development.' 'Whether the smaller excavation for the plant room extension should be approved if the major modification appeal was upheld.' 'What conditions were appropriate to prevent void spaces becoming usable floor space and to ensure sandstone treatment of visible retaining and planter walls.']

Ratio Decidendi

The modifications were approved because, on the facts, the original consent and subsequent approved landscape material already contemplated tiered planter troughs and substantial landscaping across the front setback, the natural rocky promontory would not have remained visibly central to the approved streetscape presentation, and the modified proposal would still present as a 4-storey building set back from and elevated above the street behind cascading gardens. With conditions preventing use of structural voids as floorspace and requiring natural sandstone treatment, the development as modified was substantially the same as the original consent and did not offend the relevant LEP or DCP...

Court Disposition

Both appeals upheld; modifications of consent granted subject to conditions.

Orders

  • ['In Appeal No.10149 of 2009 the appeal is upheld and the modification of consent for a development at No.95 Wentworth Ave, Vaucluse, to be known as DA No.778/2004/6 is granted subject to the conditions in Annexure A hereto.' 'In Appeal No.10150 of 2009 the appeal is upheld and the modification of consent for a...