Derums v Leichhardt Council [2010] NSWLEC 1366

Derums v Leichhardt Council [2010] NSWLEC 1366

The proposed modification, including the changed roof form and additional 6 sq m of floor area, produced only small and acceptable impacts on bulk and scale, floor space ratio, overshadowing and privacy, and the BCA concern could be addressed; therefore there was no valid planning reason to refuse the modification application.

Jurisdiction
Australia
Judgment Date
12 November 2010
Procedural Posture
Appeal Against Refusal of an Application to Modify an Approval for Alterations and Additions to an Existing Dwelling / Ex Tempore Judgment After Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 Was Terminated Without Agreement
Outcome
Appeal upheld; modification application approved subject to modifications; exhibits returned.
Legal Topics
['modification of Development Approval' 'floor Space Ratio' 'bulk and Scale' 'overshadowing' 'privacy' 'building Code of Australia']
['planning and Environment' 'development Consent'] ['modification of Development Approval' 'floor Space Ratio' 'bulk and Scale' 'overshadowing' 'privacy' 'building Code of Australia']

Case Brief

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Procedural Posture

Appeal Against Refusal of an Application to Modify an Approval for Alterations and Additions to an Existing Dwelling / Ex Tempore Judgment After Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 Was Terminated Without Agreement

Legal Issues

  1. 1 ['Whether the modified roof form created an unacceptable increase in bulk and scale' 'Whether the additional 6 sq m of floor area and increased floor space ratio justified refusal' 'Whether the modification caused unacceptable additional overshadowing' 'Whether privacy impacts from proposed windows could be addressed' 'Whether alleged Building Code of Australia non-compliance justified refusal']

Ratio Decidendi

The proposed modification, including the changed roof form and additional 6 sq m of floor area, produced only small and acceptable impacts on bulk and scale, floor space ratio, overshadowing and privacy, and the BCA concern could be addressed; therefore there was no valid planning reason to refuse the modification application.

Court Disposition

Appeal upheld; modification application approved subject to modifications; exhibits returned.

Orders

  • ['The appeal is upheld.' 'The application to modify D/2003/623 for alterations and additions to an existing dwelling at 7A Johnston Street, Balmain East is approved subject to the specified modifications.' 'Condition 1 of the Conditions to consent D/2002/623 is amended to require the development to be implemented in...