Alecris Pty Limited v Sutherland Shire Council [2004] NSWLEC 27

Alecris Pty Limited v Sutherland Shire Council [2004] NSWLEC 27

The Court found that the proposal remained substantially the same as the original approved house, the effective bulk would be reduced despite the floor space ratio exceedance, the SEPP No. 1 objection should be supported, and the landscaped area and access path issues did not justify refusal. There was nothing sufficient for refusal, so the appeal was upheld.

Jurisdiction
Australia
Judgment Date
13 January 2004
Procedural Posture
Class 1 Appeal / Judgment on Appeal From Refusal of a S.96 Application to Amend an Existing Development Consent
Outcome
Appeal upheld
Legal Topics
['development Consent Modification' 'substantially the Same Development' 'floor Space Ratio' 'building Bulk and Design' 'landscaped Area' 'foreshore Building Line']
['planning and Development' 'land and Environment' 'local Government'] ['development Consent Modification' 'substantially the Same Development' 'floor Space Ratio' 'building Bulk and Design' 'landscaped Area' 'foreshore Building Line']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Class 1 Appeal / Judgment on Appeal From Refusal of a S.96 Application to Amend an Existing Development Consent

Legal Issues

  1. 1 ['Whether the development as proposed to be modified was substantially the same development as the development for which consent was originally granted.' 'Whether the modified proposal complied with building design and floor space ratio requirements of SSLEP 2000, Draft SSLEP 2004 and the DCP.' 'Whether the modified proposal complied with landscaped area requirements of SSLEP 2000 and the DCP.' 'Whether the modified proposal complied with requirements concerning the Foreshore Building Line.']

Ratio Decidendi

The Court found that the proposal remained substantially the same as the original approved house, the effective bulk would be reduced despite the floor space ratio exceedance, the SEPP No. 1 objection should be supported, and the landscaped area and access path issues did not justify refusal. There was nothing sufficient for refusal, so the appeal was upheld.

Court Disposition

Appeal upheld

Orders

  • ['The appeal is upheld.' 'The s.96 application to amend development consent No.IDA 000826 issued on 21 December 1999 and as modified by council on 24 February 2000 in application No. MA02/0218 is further modified in regard to the conditions of consent and approved plans for a house at No. 19 Lambeth Walk, Bundeena.'...