Platform Project Services Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1696

Platform Project Services Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1696

The Court was not satisfied that the development as proposed to be modified was substantially the same development as the development originally approved. The original consent was characterised as alterations and additions to an existing dwelling, with most works focused externally on access, the swimming pool, terrace, façade and front setback, and with only minor works to the existing dwelling. The modified development would materially change the retention, layout and character of the dwelling and, in essence, amounted to new construction rather than minor alterations and additions. Because the precondition in s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979 was not...

Jurisdiction
Australia
Judgment Date
18 November 2021
Procedural Posture
Class 1 Appeal Against Deemed Refusal of a Modification Application Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 / Hearing Following Terminated Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979
Outcome
Appeal dismissed; Modification Application 8.2018.20.6 refused.
Legal Topics
['modification Application Under S 4.55(2) of the Environmental Planning and Assessment Act 1979' 'whether Modified Development Is Substantially the Same Development as Originally Approved' 'alterations and Additions to Dwelling House' 'demolition and Rebuilding of Walls']
['planning and Environment Law' 'development Consent Modification' 'residential Development'] ['modification Application Under S 4.55(2) of the Environmental Planning and Assessment Act 1979' 'whether Modified Development Is Substantially the Same Development as Originally Approved' 'alterations and Additions to Dwelling House' 'demolition and Rebuilding of Walls']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of a Modification Application Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 / Hearing Following Terminated Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the development proposed by Modification Application 8.2018.20.6 was substantially the same development as the development originally approved by DA 8.2018.20.1 for the purposes of s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether the Court had power to approve the modification application if the precondition in s 4.55(2)(a) was not satisfied.']

Ratio Decidendi

The Court was not satisfied that the development as proposed to be modified was substantially the same development as the development originally approved. The original consent was characterised as alterations and additions to an existing dwelling, with most works focused externally on access, the swimming pool, terrace, façade and front setback, and with only minor works to the existing dwelling. The modified development would materially change the retention, layout and character of the dwelling and, in essence, amounted to new construction rather than minor alterations and additions. Because the precondition in s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979 was not...

Court Disposition

Appeal dismissed; Modification Application 8.2018.20.6 refused.

Orders

  • ['The appeal is dismissed.' 'Modification Application 8.2018.20.6, which seeks to amend DA 8.2018.20.1 by the rebuilding of specific walls on both the ground and first floor is determined by way of refusal.' 'The exhibits are returned with the exception of A, B and 2.']