Thomas v Pittwater Council [2003] NSWLEC 19

Thomas v Pittwater Council [2003] NSWLEC 19

Although the circumstances leading to the demolition were relevant, the modified proposal was not substantially the same development as the approved alterations and additions to an existing dwelling house. Almost all of the original dwelling had been demolished, with only parts of two external walls remaining, no internal fabric retained, and the proposal amounting to a new dwelling incorporating token elements of the existing external walls. The applicant failed to discharge the onus of showing that the modified development was substantially the same development, so the Court did not have jurisdiction to grant the application.

Jurisdiction
Australia
Judgment Date
13 February 2003
Procedural Posture
Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of an Application to Modify a Development Consent / Judgment on Whether the Proposed Modification Was Substantially the Same Development
Outcome
Appeal dismissed.
Legal Topics
['development Consent Modification' 'section 96 Appeal' 'substantially the Same Development' 'alterations and Additions to Dwelling House']
['planning and Environment Law'] ['development Consent Modification' 'section 96 Appeal' 'substantially the Same Development' 'alterations and Additions to Dwelling House']

Case Brief

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Procedural Posture

Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of an Application to Modify a Development Consent / Judgment on Whether the Proposed Modification Was Substantially the Same Development

Legal Issues

  1. 1 ['Whether the development as sought to be modified would be substantially the same development as that for which development consent was originally granted, as required by s 96 of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed works could still be characterised as alterations and additions to an existing dwelling house after demolition of most of the original structure.']

Ratio Decidendi

Although the circumstances leading to the demolition were relevant, the modified proposal was not substantially the same development as the approved alterations and additions to an existing dwelling house. Almost all of the original dwelling had been demolished, with only parts of two external walls remaining, no internal fabric retained, and the proposal amounting to a new dwelling incorporating token elements of the existing external walls. The applicant failed to discharge the onus of showing that the modified development was substantially the same development, so the Court did not have jurisdiction to grant the application.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' 'The exhibits may be returned.']