Richard R Pearson v North Sydney Council [2003] NSWLEC 378

Richard R Pearson v North Sydney Council [2003] NSWLEC 378

The proposed changes involved only about 3 m2 of extra floor area, an increase in height over that area of about 1.8 m, a small additional building volume, and a minor internal use change from walk-in wardrobe to study. Although possible amenity and heritage impacts could be considered on the merits, they did not determine the threshold s 96 question. Applying the tests in Vasic and Tipalea Watson, the modified proposal would remain essentially the same and would not radically transform the approved development, so it was substantially the same development.

Jurisdiction
Australia
Judgment Date
17 November 2003
Procedural Posture
Development Application Modification Under S 96 of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment on Preliminary Question Whether the Modified Consent Would Be Substantially the Same Development
Outcome
The substantial sameness question was answered in the affirmative.
Legal Topics
['modification of Development Consent' 'substantially the Same Development' 'alterations and Additions to Heritage Dwelling' 'amenity Impacts' 'heritage Impacts']
['environmental Planning and Development Law' 'local Government Law' 'heritage Planning'] ['modification of Development Consent' 'substantially the Same Development' 'alterations and Additions to Heritage Dwelling' 'amenity Impacts' 'heritage Impacts']

Case Brief

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Procedural Posture

Development Application Modification Under S 96 of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment on Preliminary Question Whether the Modified Consent Would Be Substantially the Same Development

Legal Issues

  1. 1 ['Whether the proposed development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted as required by s 96(2)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether amenity impacts and heritage impacts from the proposed changes were relevant to determining the threshold s 96 substantial sameness question.']

Ratio Decidendi

The proposed changes involved only about 3 m2 of extra floor area, an increase in height over that area of about 1.8 m, a small additional building volume, and a minor internal use change from walk-in wardrobe to study. Although possible amenity and heritage impacts could be considered on the merits, they did not determine the threshold s 96 question. Applying the tests in Vasic and Tipalea Watson, the modified proposal would remain essentially the same and would not radically transform the approved development, so it was substantially the same development.

Court Disposition

The substantial sameness question was answered in the affirmative.

Orders

  • ['In relation to the application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 to modify Development Application No. 1056/01 for alterations and additions to the existing dwelling house at 15 Kareela Road, Cremorne, the question of whether the proposed development to which the consent as...