Boukatos v Woollahra Council [2004] NSWLEC 8

Boukatos v Woollahra Council [2004] NSWLEC 8

The amended proposal is substantially and in essence different from the approved development, with major changes including increased floor space, change from two-storey to three-storey, increased excavation, garage expansion, and fenestration changes. Hence, the s96 application cannot be approved as it is not merely an amendment to the original development but a new proposal.

Parties
Applicant: George Boukatos; Respondent: Woollahra Council
Jurisdiction
Australia
Judgment Date
20 January 2004
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed
Legal Topics
Development Application, Development Standards, Section 96 Application, Floor Space Ratio
Planning and Environmental Law Development Application Development Standards Section 96 Application Floor Space Ratio

Case Brief

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Parties

George Boukatos

Applicant

Woollahra Council

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the amended proposal is substantially the same development as the approved proposal under s96 of the Environmental Planning and Assessment Act 1979
  2. 2 Whether the extent to which the proposal exceeded the permissible Floor Space Ratio (FSR) was justified
  3. 3 Whether extension of excavation for enlarged garage at the boundary was acceptable

Ratio Decidendi

The amended proposal is substantially and in essence different from the approved development, with major changes including increased floor space, change from two-storey to three-storey, increased excavation, garage expansion, and fenestration changes. Hence, the s96 application cannot be approved as it is not merely an amendment to the original development but a new proposal.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • The application under s96 of the Environmental Planning and Assessment Act 1979 to amend development consent No 12164/2001 granted by Woollahra Council on 8 October 2002 is determined by refusal.