Pikoulas v Canterbury City Council [2008] NSWLEC 77

Pikoulas v Canterbury City Council [2008] NSWLEC 77

It would not be substantially the same development to delete the first sentence of condition 4, which would permit an independent new dwelling, as that use was expressly refused in the original consent. Deletion of only the second sentence, which restricts kitchen facilities, is permissible, and parking and environmental considerations do not warrant refusal of the lesser modification.

Parties
Applicant: Mr Pikoulas; Respondent: Canterbury City Council
Jurisdiction
Australia
Judgment Date
01 February 2008
Procedural Posture
Appeal / Judgment on Appeal Against Refusal to Modify Development Consent
Outcome
Appeal upheld in part
Legal Topics
Modification of Development Consent, Environmental Planning Instruments, Development Control Plan Compliance, Section 96 Environmental Planning and Assessment Act 1979
Planning and Environment Law Modification of Development Consent Environmental Planning Instruments Development Control Plan Compliance Section 96 Environmental Planning and Assessment Act 1979

Case Brief

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Parties

Mr Pikoulas

Applicant

Canterbury City Council

Respondent

Procedural Posture

Appeal / Judgment on Appeal Against Refusal to Modify Development Consent

Legal Issues

  1. 1 Whether the requested modification to the development consent satisfies the requirements of s 96(1A)(a) and s 96(1A)(b) of the Environmental Planning and Assessment Act 1979
  2. 2 Whether deletion of condition 4 in part or whole would result in a development substantially the same as originally consented
  3. 3 Whether environmental and parking impacts preclude the modification

Ratio Decidendi

It would not be substantially the same development to delete the first sentence of condition 4, which would permit an independent new dwelling, as that use was expressly refused in the original consent. Deletion of only the second sentence, which restricts kitchen facilities, is permissible, and parking and environmental considerations do not warrant refusal of the lesser modification.

Court Disposition

Appeal upheld in part

Orders

  • Development Consent 8256/96C to be amended only by the deletion of the second sentence of condition 4.
  • Exhibits and filed materials to be returned to parties.