City Plan Services Pty Ltd v Woollahra Council [2004] NSWLEC 73

City Plan Services Pty Ltd v Woollahra Council [2004] NSWLEC 73

The proposed modification involves such extensive demolition and reconstruction that it is qualitatively and quantitatively too different from the original consent to be considered 'substantially the same development' under s 96(2)(a) of the Environmental Planning and Assessment Act 1979; therefore, the application for modification must be refused.

Parties
Applicant: City Plan Services Pty Ltd; Respondent: Woollahra Council
Jurisdiction
Australia
Judgment Date
02 March 2004
Procedural Posture
Appeal / Final Judgment
Outcome
appeal dismissed; modification application refused
Legal Topics
Modification of Development Consent, Substantially the Same Development, Demolition and Re Instatement
Planning Law Modification of Development Consent Substantially the Same Development Demolition and Re Instatement

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Parties

City Plan Services Pty Ltd

Applicant

Woollahra Council

Respondent

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether the proposed development modification is 'substantially the same development' as originally approved under s 96(2)(a) of the Environmental Planning and Assessment Act 1979
  2. 2 Whether the extent of demolition and reconstruction falls within permissible scope of modification under s 96(2)

Ratio Decidendi

The proposed modification involves such extensive demolition and reconstruction that it is qualitatively and quantitatively too different from the original consent to be considered 'substantially the same development' under s 96(2)(a) of the Environmental Planning and Assessment Act 1979; therefore, the application for modification must be refused.

Court Disposition

appeal dismissed; modification application refused

Orders

  • Appeal pursuant to s 96 of the Environmental Planning and Assessment Act 1979 is dismissed.
  • Application pursuant to s 96(2) of the Environmental Planning and Assessment Act 1979 to modify development consent 417/2001 for works at 29A Manning Road, Double Bay is determined by the refusal of development consent.