Vigor Master Pty Ltd & Jiang v Lane Cove Council [2010] NSWLEC 1267

Vigor Master Pty Ltd & Jiang v Lane Cove Council [2010] NSWLEC 1267

The Court found that there are major cumulative changes to the original approved development including excavation for an additional floor, changes to the building's bulk and scale, conversion of the pool from outdoor to indoor, modifications to the garage, and replacement of grassed yard areas with hard-surfaced terraces. These changes mean the development is not substantially the same as originally approved and thus the application to modify development consent is refused. Further, compliance with relevant codes cannot be established, so the building certificate application is also refused.

Jurisdiction
Australia
Judgment Date
06 October 2010
Procedural Posture
Appeal / Judgment
Outcome
appeals dismissed, modification and certificate refused
Legal Topics
['development Modification' 'building Certificate' 'substantially the Same Development' 'compliance With Building Code of Australia']
['planning Law' 'environmental Law' 'building Regulation'] ['development Modification' 'building Certificate' 'substantially the Same Development' 'compliance With Building Code of Australia']

Case Brief

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether the proposed modified development is substantially the same as the originally approved development under s 96(2)(a) of the Environmental Planning and Assessment Act 1979' 'Whether a building certificate should be issued under s 149F of the Environmental Planning and Assessment Act 1979']

Ratio Decidendi

The Court found that there are major cumulative changes to the original approved development including excavation for an additional floor, changes to the building's bulk and scale, conversion of the pool from outdoor to indoor, modifications to the garage, and replacement of grassed yard areas with hard-surfaced terraces. These changes mean the development is not substantially the same as originally approved and thus the application to modify development consent is refused. Further, compliance with relevant codes cannot be established, so the building certificate application is also refused.

Court Disposition

appeals dismissed, modification and certificate refused

Orders

  • ['In Appeal 10365 of 2010: The appeal is dismissed; application to modify Development Consent DA167/06 is refused; exhibits returned.' 'In Appeal 10429 of 2010: The appeal is dismissed; exhibits returned.']