Bluebank Properties Pty Ltd v Willoughby City Council [2008] NSWLEC 1182

Bluebank Properties Pty Ltd v Willoughby City Council [2008] NSWLEC 1182

The proposed modification was not substantially the same development as originally approved. The modification involved extensive additional excavation, creation of additional habitable floor space and a fourth storey appearance, relocation of stormwater detention, unresolved hydrology and vegetation issues, and a structural method inconsistent with the original approval and with the claim that each Torrens Title townhouse would be independent. Those changes altered both the qualitative and quantitative character of the consent and could not be approved as a s 96 modification.

Jurisdiction
Australia
Judgment Date
26 May 2008
Procedural Posture
Appeal About Refusal of a S 96 Modification Application for a Development Consent / Judgment Following Hearing; Dismissal Foreshadowed and Proceedings Adjourned
Outcome
The Court foreshadowed dismissal of the appeal but adjourned the proceedings pending determination by Justice Biscoe as a consequence of orders dated 28 September 2007.
Legal Topics
['section 96 Modification' 'substantially the Same Development' 'townhouse Development' 'foreshore Building Line' 'excavation' 'stormwater Drainage and Hydrology' 'bushland and Vegetation Impacts' 'sepp No. 1 Objection' 'construction Certificate Plans']
['planning and Environment' 'development Control' 'land Use'] ['section 96 Modification' 'substantially the Same Development' 'townhouse Development' 'foreshore Building Line' 'excavation' 'stormwater Drainage and Hydrology' 'bushland and Vegetation Impacts' 'sepp No. 1 Objection' 'construction Certificate Plans']

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Procedural Posture

Appeal About Refusal of a S 96 Modification Application for a Development Consent / Judgment Following Hearing; Dismissal Foreshadowed and Proceedings Adjourned

Legal Issues

  1. 1 ['Whether the proposed modification satisfied s 96(2)(a) of the Environmental Planning & Assessment Act 1979 by remaining substantially the same development as originally approved.' 'Whether excavation to create additional habitable rooms and floor space changed the scale, storeys, structural method and environmental impacts of the approved townhouse.' 'Whether inconsistencies between architectural and engineering drawings prevented proper consideration of the modification application.' 'Whether the proposal would affect drainage, sub-surface hydrology, vegetation and sensitive foreshore bushland areas.']

Ratio Decidendi

The proposed modification was not substantially the same development as originally approved. The modification involved extensive additional excavation, creation of additional habitable floor space and a fourth storey appearance, relocation of stormwater detention, unresolved hydrology and vegetation issues, and a structural method inconsistent with the original approval and with the claim that each Torrens Title townhouse would be independent. Those changes altered both the qualitative and quantitative character of the consent and could not be approved as a s 96 modification.

Court Disposition

The Court foreshadowed dismissal of the appeal but adjourned the proceedings pending determination by Justice Biscoe as a consequence of orders dated 28 September 2007.

Orders

  • ['This Hearing is adjourned to a date to be fixed following a determination by His Honour Justice Biscoe as a consequence of his orders dated 28 September 2007.' 'The exhibits are returned to the parties except Exhibits 5, 13, 15,16, F, H & L.']