Xpace Design Group Pty Ltd v Waverley Council [2006] NSWLEC 332

Xpace Design Group Pty Ltd v Waverley Council [2006] NSWLEC 332

The only substantial issue was non-compliance with the floor space ratio. The additional floor area would be created by filling an existing approved void, largely concealed within the basement, while retaining the approved height, setbacks, visual bulk and scale. The changes would not be apparent from the public domain and would only be apparent to a neighbour through new vertical windows in an already approved wall. The non-compliance was therefore explained and justified, and consent should be granted subject to the agreed conditions.

Jurisdiction
Australia
Judgment Date
31 May 2006
Procedural Posture
Appeal Concerning Refusal of a S96 Modification Application for Development Consent / Ex Tempore Judgment; Appeal Upheld by Consent
Outcome
Appeal upheld by consent; development consent granted subject to conditions in Exhibit.
Legal Topics
['development Application' 's96 Modification Application' 'floor Space Ratio' 'bulk and Scale' 'development Control Plan Non Compliance' 'residential Amenity']
['environmental Planning and Development'] ['development Application' 's96 Modification Application' 'floor Space Ratio' 'bulk and Scale' 'development Control Plan Non Compliance' 'residential Amenity']

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Procedural Posture

Appeal Concerning Refusal of a S96 Modification Application for Development Consent / Ex Tempore Judgment; Appeal Upheld by Consent

Legal Issues

  1. 1 ['Whether the proposed modification should be approved despite exceeding the floor space ratio in Waverley Council Development Control Plan No. 2.' 'Whether the modification would cause unacceptable bulk, scale, streetscape or amenity impacts.' 'Whether development consent should be granted subject to agreed conditions.']

Ratio Decidendi

The only substantial issue was non-compliance with the floor space ratio. The additional floor area would be created by filling an existing approved void, largely concealed within the basement, while retaining the approved height, setbacks, visual bulk and scale. The changes would not be apparent from the public domain and would only be apparent to a neighbour through new vertical windows in an already approved wall. The non-compliance was therefore explained and justified, and consent should be granted subject to the agreed conditions.

Court Disposition

Appeal upheld by consent; development consent granted subject to conditions in Exhibit.

Orders

  • ['The appeal is upheld by consent.' 'Development consent is granted subject to the conditions in Exhibit.']