Carcary v Willoughby City Council [2003] NSWLEC 395

Carcary v Willoughby City Council [2003] NSWLEC 395

The proposed modifications did not satisfy the tests pursuant to s 96(2) because the more dominantly featured southern elevation, together with significant changes to the eastern and western elevations and the obvious visual prolongation of the upper bulk of the proposed dwelling, meant the proposal could not proceed to merits consideration.

Jurisdiction
Australia
Judgment Date
04 September 2003
Procedural Posture
Application Pursuant to S 96 of the Environmental Planning and Assessment Act to Modify a Development Consent / Appeal Against a Deemed Refusal, Subsequently Confirmed as an Actual Refusal by Resolution of the Council; Ex Tempore Judgment
Outcome
Appeal dismissed and s 96 modification application refused.
Legal Topics
['modification of Development Consent' '"substantially the Same" Development' 'conservation Zone']
['planning and Environment' 'development Consent'] ['modification of Development Consent' '"substantially the Same" Development' 'conservation Zone']

Case Brief

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Procedural Posture

Application Pursuant to S 96 of the Environmental Planning and Assessment Act to Modify a Development Consent / Appeal Against a Deemed Refusal, Subsequently Confirmed as an Actual Refusal by Resolution of the Council; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the proposed modifications to the approved dwelling satisfied the tests pursuant to s 96(2) of the Environmental Planning and Assessment Act.' 'Whether the proposed modified development was sufficiently the same as the approved development to permit consideration of merits issues.']

Ratio Decidendi

The proposed modifications did not satisfy the tests pursuant to s 96(2) because the more dominantly featured southern elevation, together with significant changes to the eastern and western elevations and the obvious visual prolongation of the upper bulk of the proposed dwelling, meant the proposal could not proceed to merits consideration.

Court Disposition

Appeal dismissed and s 96 modification application refused.

Orders

  • ['The appeal is dismissed.' 'Application pursuant to s96 of the Environmental Planning and Assessment Act 1997 to modify an approval for construction of a dwelling house at 287 Mowbray Road, Willoughby is refused.' 'The exhibits, except Exhibits 4 and 6, may be returned.']