Pennings G & M v Wyong S C [2004] NSWLEC 160

Pennings G & M v Wyong S C [2004] NSWLEC 160

The s 96 modification appeal was dismissed because the constructed works involved a significant increase in floor space and practical conversion of roof space into habitable areas that could be used as a separate dwelling, producing a considerably different and more intense development that was not substantially the same as the approved development. The modification also involved excessive encroachment into the coastal Hazard Zone without exceptional circumstances, increased risk in a major storm event, and did not reasonably comply with DCP 77 or the public interest. The Building Certificate appeal was adjourned because proposed removal and rectification works could bring the development...

Jurisdiction
Australia
Judgment Date
06 April 2004
Procedural Posture
Appeals Against Refusal of a S 96 Modification and Refusal to Issue a Building Certificate / Ex Tempore Judgment After Concurrent Hearing
Outcome
The s 96 modification appeal was dismissed and the modification was refused; the Building Certificate appeal was adjourned for further details concerning removal of unauthorised works.
Legal Topics
['section 96 Modification' 'substantially the Same Development' 'building Certificate' 'foreshore Erosion Zone' 'dual Occupancy']
['planning and Environment' 'development Consent' 'coastal Hazards'] ['section 96 Modification' 'substantially the Same Development' 'building Certificate' 'foreshore Erosion Zone' 'dual Occupancy']

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Procedural Posture

Appeals Against Refusal of a S 96 Modification and Refusal to Issue a Building Certificate / Ex Tempore Judgment After Concurrent Hearing

Legal Issues

  1. 1 ['Whether the s 96 modification application related to substantially the same development as the approved development.' 'Whether the unauthorised works had acceptable merit having regard to coastal erosion impacts and DCP 77.' 'Whether the Building Certificate appeal should be determined or adjourned to allow further details, specifications and plans for rectification works.']

Ratio Decidendi

The s 96 modification appeal was dismissed because the constructed works involved a significant increase in floor space and practical conversion of roof space into habitable areas that could be used as a separate dwelling, producing a considerably different and more intense development that was not substantially the same as the approved development. The modification also involved excessive encroachment into the coastal Hazard Zone without exceptional circumstances, increased risk in a major storm event, and did not reasonably comply with DCP 77 or the public interest. The Building Certificate appeal was adjourned because proposed removal and rectification works could bring the development...

Court Disposition

The s 96 modification appeal was dismissed and the modification was refused; the Building Certificate appeal was adjourned for further details concerning removal of unauthorised works.

Orders

  • ['The appeal is dismissed.' 'The s 96 modification to development application No. 1158/96 is refused.' 'The matter is adjourned to enable the parties to consider the extent of removal of the unauthorised work.']