Van Mourik v Mosman Municipal Council [2023] NSWLEC 1599

Van Mourik v Mosman Municipal Council [2023] NSWLEC 1599

The proposed modifications, including enclosure of the undercroft area with a garage door and deletion of Condition 93, result in a qualitative and quantitative change to the development such that it is not substantially the same as the originally approved development. The essence of the undercroft area is changed from an outside open space to an enclosure, altering its use and increasing built form dominance; this breaches an essential aspect of original consent, and the Court is not satisfied the test in s 4.55(2)(a) is met. The appeal must be dismissed for want of jurisdictional power.

Jurisdiction
Australia
Judgment Date
11 October 2023
Procedural Posture
Class 1 Appeal / Decision After Hearing
Outcome
Appeal dismissed; modification application refused.
Legal Topics
['modification of Development Consent' 'substantially the Same Development' 'bulk and Scale' 'landscaping' 'garage and Parking' 'development Control']
['planning and Environment Law'] ['modification of Development Consent' 'substantially the Same Development' 'bulk and Scale' 'landscaping' 'garage and Parking' 'development Control']

Case Brief

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Procedural Posture

Class 1 Appeal / Decision After Hearing

Legal Issues

  1. 1 ['Whether proposed modifications result in a development that is substantially the same as originally approved development under s 4.55(2)(a) Environmental Planning and Assessment Act 1979 (NSW)' "Impact of enclosure of 'undercroft' area and deletion of Condition 93 on use and appearance" 'Public interest and orderly development']

Ratio Decidendi

The proposed modifications, including enclosure of the undercroft area with a garage door and deletion of Condition 93, result in a qualitative and quantitative change to the development such that it is not substantially the same as the originally approved development. The essence of the undercroft area is changed from an outside open space to an enclosure, altering its use and increasing built form dominance; this breaches an essential aspect of original consent, and the Court is not satisfied the test in s 4.55(2)(a) is met. The appeal must be dismissed for want of jurisdictional power.

Court Disposition

Appeal dismissed; modification application refused.

Orders

  • ['The appeal is dismissed.' 'Modification Application No 8.2019.121.4 for modification of consent No 8.2019.121.1 comprising amendments to driveway, garage, openings and deletion of Condition 93, at 35 Middle Head Road, Mosman, 2088, is refused.' 'The exhibits are returned except Exhibit A.']