The Turnbull Group Pty Ltd v Pittwater Council [2007] NSWLEC 445

The Turnbull Group Pty Ltd v Pittwater Council [2007] NSWLEC 445

The modification application failed because, comparing the 1999 consent for alterations and additions to the dwelling house with the proposed demolition and re-erection of the rear studio, the consent as modified would not be substantially the same development. The original plans and condition 29 referred to the existing studio only for removal of bathroom and cooking facilities and imposition of a covenant, and did not provide a basis to infer approval for external works or rebuilding of the studio. As the substantially the same development threshold was not met, the Court was without power to determine the application on its merits and consent was refused.

Jurisdiction
Australia
Judgment Date
10 July 2007
Procedural Posture
S 96(6) Appeal Under the Environmental Planning and Assessment Act Against Refusal of a Modification Application / Judgment After Hearing on Site
Outcome
Appeal dismissed; s 96 modification application refused.
Legal Topics
['s 96 Modification Application' 'substantially the Same Development' 'demolition and Re Erection of Studio' 'impacts on Adjoining Property and Area' 'view Impacts']
['planning and Environment Law'] ['s 96 Modification Application' 'substantially the Same Development' 'demolition and Re Erection of Studio' 'impacts on Adjoining Property and Area' 'view Impacts']

Case Brief

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Procedural Posture

S 96(6) Appeal Under the Environmental Planning and Assessment Act Against Refusal of a Modification Application / Judgment After Hearing on Site

Legal Issues

  1. 1 ['Whether the proposed demolition and re-erection of the studio was substantially the same development as the development for which consent was originally granted in 1999.' 'Whether the Court had power to determine the s 96 modification application if the substantially the same development threshold was not met.' 'Whether, if considered on the merits, the proposed studio design and impacts on adjoining properties and the area would warrant approval.']

Ratio Decidendi

The modification application failed because, comparing the 1999 consent for alterations and additions to the dwelling house with the proposed demolition and re-erection of the rear studio, the consent as modified would not be substantially the same development. The original plans and condition 29 referred to the existing studio only for removal of bathroom and cooking facilities and imposition of a covenant, and did not provide a basis to infer approval for external works or rebuilding of the studio. As the substantially the same development threshold was not met, the Court was without power to determine the application on its merits and consent was refused.

Court Disposition

Appeal dismissed; s 96 modification application refused.

Orders

  • ['The appeal in respect of the property known as 278 Whale Beach Road, Whale Beach, is dismissed.' 'The s 96 modification application is determined as not being substantially the same development and therefore consent is refused.' 'The exhibits are returned to the parties.']