Hunter v Leichhardt Council [2007] NSWLEC 394

Hunter v Leichhardt Council [2007] NSWLEC 394

The 960 mm additional height should not be approved because the already approved development substantially exceeded current controls for floor space ratio, setbacks and height, and further height would increase impacts on neighbouring properties, particularly Nos 138 and 136 Beattie Street, through overlooking and loss of scarce sunlight. However, a 90 mm increase was justified to achieve the Building Code of Australia minimum 2.4 m ceiling height, and the other amendments could be allowed.

Jurisdiction
Australia
Judgment Date
13 June 2007
Procedural Posture
Section 96 Application Appeal Concerning Modification of Development Consent DA 1997/296 / Ex Tempore Judgment
Outcome
Appeal upheld in part; the s 96 application was approved with amendments limiting the height increase.
Legal Topics
['section 96 Application' 'additional Building Height' 'overshadowing and Solar Access' 'bulk and Scale' 'overlooking' 'residential Amenity' 'heritage Conservation Area']
['planning and Environment Law' 'development Consent Modification'] ['section 96 Application' 'additional Building Height' 'overshadowing and Solar Access' 'bulk and Scale' 'overlooking' 'residential Amenity' 'heritage Conservation Area']

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Procedural Posture

Section 96 Application Appeal Concerning Modification of Development Consent DA 1997/296 / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether condition 3A requiring deletion of the proposed additional height of 960 mm should be varied or removed.' 'Whether the amenity impacts on adjacent properties were acceptable in terms of solar access, visual bulk and overlooking.' 'Whether the amended plans sufficiently reduced impacts on Nos 150, 138 and 136 Beattie Street.']

Ratio Decidendi

The 960 mm additional height should not be approved because the already approved development substantially exceeded current controls for floor space ratio, setbacks and height, and further height would increase impacts on neighbouring properties, particularly Nos 138 and 136 Beattie Street, through overlooking and loss of scarce sunlight. However, a 90 mm increase was justified to achieve the Building Code of Australia minimum 2.4 m ceiling height, and the other amendments could be allowed.

Court Disposition

Appeal upheld in part; the s 96 application was approved with amendments limiting the height increase.

Orders

  • ['Appeal upheld in part.' "The s 96 application is approved and council's Notice of Determination dated 14 December 2006 is amended by replacing the 8th sub-arrow point of item 1 condition 3 with specified architectural plans prepared by Turner & Associates." 'The s 96 application is approved and council\'s Notice...