Blank v Woollahra Council [2011] NSWLEC 1111

Blank v Woollahra Council [2011] NSWLEC 1111

The original proposed retaining wall would have increased the perceived height and bulk of the boundary wall from Camp Cove and had an unacceptable visual impact. However, amended plans filed on 9 May 2011 set the retaining wall further back, provided landscaping, and were accompanied by a condition limiting the boundary wall to RL 4.5 and prohibiting a balustrade on top of the boundary wall or between it and the retaining wall. With those changes, the proposal had an acceptable and lesser visual impact than the approval when viewed from Camp Cove and the headlands, so the appeal was upheld and the s 96 modification was approved.

Jurisdiction
Australia
Judgment Date
17 May 2011
Procedural Posture
Appeal Against Refusal of an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent / Principal Judgment
Outcome
Appeal upheld; s 96 modification application approved.
Legal Topics
['section 96 Modification Application' 'development Consent Conditions' 'visual Impact From Public Domain' 'boundary Wall and Retaining Wall Controls' 'watsons Bay Heritage Conservation Area']
['environmental Planning and Assessment' 'land and Environment' 'heritage Conservation'] ['section 96 Modification Application' 'development Consent Conditions' 'visual Impact From Public Domain' 'boundary Wall and Retaining Wall Controls' 'watsons Bay Heritage Conservation Area']

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Procedural Posture

Appeal Against Refusal of an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent / Principal Judgment

Legal Issues

  1. 1 ['Whether conditions C.1(f), (g), (h) and (i) of the development consent could be deleted to allow alteration of the landform within the site.' 'Whether the proposed retaining wall and increased ground level would have an unacceptable bulk and visual impact when viewed from Camp Cove and surrounding headlands.' 'Whether the proposal complied with, or acceptably varied from, wall height controls in C27 of the Watsons Bay Heritage Conservation Area Development Control Plan.' 'Whether amended plans setting the retaining wall further back and imposing limits on the boundary wall and balustrades addressed the visual impact concerns.']

Ratio Decidendi

The original proposed retaining wall would have increased the perceived height and bulk of the boundary wall from Camp Cove and had an unacceptable visual impact. However, amended plans filed on 9 May 2011 set the retaining wall further back, provided landscaping, and were accompanied by a condition limiting the boundary wall to RL 4.5 and prohibiting a balustrade on top of the boundary wall or between it and the retaining wall. With those changes, the proposal had an acceptable and lesser visual impact than the approval when viewed from Camp Cove and the headlands, so the appeal was upheld and the s 96 modification was approved.

Court Disposition

Appeal upheld; s 96 modification application approved.

Orders

  • ['The appeal is upheld.' 'The application under s 96 of the Environmental Planning and Assessment Act 1979 is approved. The development consent to Development Application No. 777/2008 part 12 for the demolition of an existing dwelling house and ancillary structures and erection of a new dwelling house and ancillary...