Thomas v Pittwater Council - [2003] NSWLEC 19

Land and Environment Court

of New South Wales

CITATION: Thomas v Pittwater Council [2003] NSWLEC 19

PARTIES:
APPLICANT:
David Thomas
RESPONDENT:
Pittwater Council

FILE NUMBER(S): 10663 of 2002

CORAM: Lloyd J

KEY ISSUES: Development Consent :- modification - s 96(6) appeal - substantially the same development

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 96

CASES CITED: Moto Project (No. 2) Pty Ltd v North Sydney City Council (1999) 106 LGERA 298;
Vacik Pty Ltd v Penrith City Council NSWLEC Stein J, 24 February 1992, unreported

DATES OF HEARING: 22/11/2002

DATE OF JUDGMENT:
02/13/2003

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J B Maston (barrister)
SOLICITORS:
Sparke Helmore
RESPONDENT:
Mr A E Galasso (barrister)
SOLICITORS:
Mallesons Stephen Jaques

JUDGMENT:

- 3 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10663 of 2002

Lloyd J

13 February 2003

David Thomas

Applicant

Pittwater Council

Respondent

JUDGMENT

The question for determination

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) against the deemed refusal of an application to modify a development consent. The question for determination is whether the development as sought to be modified would be substantially the same development as that for which the development consent was originally granted, as required by s 96.

Background

2. On 15 June 2001 the respondent, Pittwater Council (“the council”) granted development consent for alterations and additions to an existing dwelling house at No. 5 Mitchell Road, Palm Beach. This involved the excavation for and construction of a lower floor level, the demolition and replacement of certain internal and external walls, replacement of the roof, construction of terrace areas, and retention of the existing street façade.

3 On 10 December 2001 an application was made under s 96 of the EP&A Act to modify the consent to effect some minor changes to the design and which, for the present purposes are immaterial.

4 In February 2002 the whole of the main part of the house was demolished, including the flooring and internal walls which were to remain. Only a part of two external walls, one facing the street and the other at the side, remained standing and are presently supported by temporary steel framing. The council then ordered the work to stop, pending the submission of an amended application under s 96 of the EP& A Act to include the additional works that had been carried out. On 21 May 2002 the present application was made so as to modify the consent to include retrospectively the additional work that had been carried out. On 23 September 2002 the council refused the application because it did not satisfy the requirement under s 96 that the consent as modified would be substantially the same development as the development for which consent was originally granted.

5 The evidence suggests that difficulties were encountered in relation to the structural integrity of those parts of the building to be retained under the original development consent: extensive termite…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWLEC 19
Decision Date: 02/13/2003

CaseChat Overview and Summary

In the case of Thomas v Pittwater Council, the applicant sought to modify a development consent granted by Pittwater Council for alterations and additions to a dwelling house at Palm Beach. The appeal was brought under s 96(6) of the Environmental Planning and Assessment Act 1979, challenging the council's refusal to modify the consent to include additional work that had been carried out. The primary legal issue was whether the proposed modified development was substantially the same as the original development for which consent was granted.

The court considered the submissions from both parties and the evidence presented. The applicant argued that the consent should be modified as the circumstances leading to the demolition of the existing structure were unforeseen and the external appearance of the building would remain unchanged. The council, on the other hand, contended that the development had materially changed and could no longer be described as alterations and additions to the existing dwelling. The court found that the circumstances in which the consent was granted were relevant and that the changed circumstances, particularly the unforeseen structural issues, were significant. The court concluded that the proposed development could not be considered alterations and additions to the existing dwelling, as almost nothing of the former dwelling remained. Consequently, the court held that the applicant had not demonstrated that the modified development would be substantially the same as the original development, and the appeal was dismissed.

Orders