Nicola v Waverley Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nicola v Waverley Council [2020] NSWLEC 1599

Hearing dates:

Conciliation conference on 30 July 2020;
Hearing on 30 and 31 July 2020

Date of orders:

4 December 2020

Decision date:

04 December 2020

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

The Court orders:

(1) Leave is granted to rely on the Amended Plans in Exhibit A and as described in the conditions in Annexure A.

(2) The appeal is upheld.

(3) Development Consent is granted to Development Application DA-513/2017/B at 27 Princess Street, Rose Bay for internal alterations to room layouts, the addition of a new stair access with glass enclosure to the roof level and a new 15m2 rooftop terrace with glass balustrade, subject to the agreed conditions in Annexure A.

(4) The exhibits, with the exception of Exhibits A and 6 are returned.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house – clause 4.6 variation to building height – calculation of ground level (existing) – view impacts

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Cases Cited:

Bettar v City of Sydney [2014] NSWLEC 1070

Chami v Lane Cove Council [2015] NSWLEC 1003

Connoisseur Investments Pty Ltd v Sutherland Shire Council ([2020]) NSWLEC 1181

Stamford Property Services Pty Ltd v City of Sydney [2015] NSWLEC 1189

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020)

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

George Nicola (First Applicant)
Miriam Nicola (Second Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicants)
M Hanna (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicants)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/142708

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 appeal filed with the Land and Environment Court (the Court) on 13 May 2020 under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Waverley Council (Council) of Development Application DA-513/2017/B (the subject modification DA). The subject modification DA seeks consent to modify the development application DA-513/2017 as approved by Council on 1 February 2018 (the original DA) to allow a new rooftop terrace and access thereto. In exercising the functions of consent authority the Court has the power to determine the modification DA pursuant to ss 4.15 and 4.16 of the EPA Act.

Modification application pursuant to s 4.55(1A) or s 4.55(2)

2. The subject modification DA was lodged pursuant to s 4.55(1A) of the EPA Act, which applies to “modifications involving minimal environmental impact”. Section 4.55(1A)(a) states:

(1A) Modifications involving minimal environmental impact  A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a)  it is satisfied that the proposed modification is of minimal environmental impact, and

…

3. Although not a matter of dispute between the parties,…