Nicola v Waverley Council [2020] NSWLEC 1599

Nicola v Waverley Council [2020] NSWLEC 1599

The proposed modification as amended is substantially the same development as originally approved. Although the height limit is exceeded, environmental impacts including on neighbouring views are not unreasonable having regard to planning objectives and view sharing principles. The stairwell’s impact on FSR is negligible and not jurisdictionally determinative. The development application as amended is acceptable subject to conditions.

Parties
First Applicant: George Nicola; Second Applicant: Miriam Nicola; Respondent: Waverley Council
Jurisdiction
Australia
Judgment Date
04 December 2020
Procedural Posture
Class 1 Appeal / Judgment Following Hearing and Conciliation Conference
Outcome
Appeal upheld; development consent granted with conditions
Legal Topics
Development Application, Building Height Variation, View Impacts, Modification of Consent, Environmental Impacts, Visual Privacy, Floor Space Ratio
Planning and Environment Development Application Building Height Variation View Impacts Modification of Consent Environmental Impacts Visual Privacy Floor Space Ratio

Case Brief

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Parties

George Nicola

First Applicant

Miriam Nicola

Second Applicant

Waverley Council

Respondent

Procedural Posture

Class 1 Appeal / Judgment Following Hearing and Conciliation Conference

Legal Issues

  1. 1 Whether the proposed modification constitutes 'substantially the same development' as originally approved
  2. 2 Whether compliance with building height and floor space ratio development standards is achieved or required for modification under s 4.55(2) EPA Act
  3. 3 Whether environmental impacts, including view loss and visual privacy, are reasonable and acceptable

Ratio Decidendi

The proposed modification as amended is substantially the same development as originally approved. Although the height limit is exceeded, environmental impacts including on neighbouring views are not unreasonable having regard to planning objectives and view sharing principles. The stairwell’s impact on FSR is negligible and not jurisdictionally determinative. The development application as amended is acceptable subject to conditions.

Court Disposition

Appeal upheld; development consent granted with conditions

Orders

  • Leave is granted to rely on the Amended Plans in Exhibit A and as described in the conditions in Annexure A.
  • The appeal is upheld.