Sud v Sutherland Shire Council [2012] NSWLEC 1162

Sud v Sutherland Shire Council [2012] NSWLEC 1162

The Court was satisfied that the development as modified would be substantially the same as the originally approved development and therefore had jurisdiction. On the expert planning evidence and after considering the relevant s 79C matters, cll 48 and 49 of the Sutherland Shire Local Environmental Plan 2006 and the amended plans, the modifications were acceptable subject to conditions, except for the northern 3 m extension of the rear concrete roof slab and supporting columns, which would add unacceptable bulk, scale, overlooking, privacy and amenity impacts and would not preserve neighbourhood character. A 1500 mm masonry sill for W18 was appropriate, the eastern turf strip level of RL...

Jurisdiction
Australia
Judgment Date
13 June 2012
Procedural Posture
Class 1 Modification Appeal Under S 97 AA of the Environmental Planning and Assessment Act 1979 From Refusal of a S 96 Modification Application / Decision After Hearing
Outcome
Appeal upheld; development consent granted to modification application number 11/0365 subject to conditions, including that the northern 3 m extension of the roof slab and supporting columns over the rear balcony was not approved.
Legal Topics
['modification of Development Consent' 'substantially the Same Development' 'residential Development' 'bulk and Scale' 'overlooking and Privacy' 'neighbourhood Character' 'conditions of Consent']
['planning and Environment Law' 'development Consent Modification' 'local Government'] ['modification of Development Consent' 'substantially the Same Development' 'residential Development' 'bulk and Scale' 'overlooking and Privacy' 'neighbourhood Character' 'conditions of Consent']

Case Brief

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Procedural Posture

Class 1 Modification Appeal Under S 97 AA of the Environmental Planning and Assessment Act 1979 From Refusal of a S 96 Modification Application / Decision After Hearing

Legal Issues

  1. 1 ['Whether the Court had jurisdiction to determine the modification application by being satisfied that the development as modified would be substantially the same development as originally approved.' 'Whether the proposed modifications were acceptable after assessment under s 79C of the Environmental Planning and Assessment Act 1979, including under cll 48 and 49 of the Sutherland Shire Local Environmental Plan 2006.' 'Whether the northern extension of the concrete slab roof and supporting columns over the rear balcony should be approved despite concerns about bulk, scale, privacy and amenity impacts.' 'Whether window W18 on the eastern elevation should have fixed obscure glazing from floor to ceiling or incorporate a 1500 mm masonry sill height.' 'Whether the turf strip along the eastern side of the pool should be at natural ground level or finished ground level RL 140.6.' 'Whether the Court could impose conditions concerning roof access, removal of a staircase to the roof, reduction of the parapet height, or preventing use of the roof area as a terrace.']

Ratio Decidendi

The Court was satisfied that the development as modified would be substantially the same as the originally approved development and therefore had jurisdiction. On the expert planning evidence and after considering the relevant s 79C matters, cll 48 and 49 of the Sutherland Shire Local Environmental Plan 2006 and the amended plans, the modifications were acceptable subject to conditions, except for the northern 3 m extension of the rear concrete roof slab and supporting columns, which would add unacceptable bulk, scale, overlooking, privacy and amenity impacts and would not preserve neighbourhood character. A 1500 mm masonry sill for W18 was appropriate, the eastern turf strip level of RL...

Court Disposition

Appeal upheld; development consent granted to modification application number 11/0365 subject to conditions, including that the northern 3 m extension of the roof slab and supporting columns over the rear balcony was not approved.

Orders

  • ['The appeal is upheld.' 'Development consent is granted to modification application number 11/0365 as detailed in the amended plans, exhibit A and subject to the conditions in exhibit 7 including condition M which states: This modification does not approve the northern 3 m extension of the roof slab and supporting...