Modification to Development Application Allowed

The court allowed a modification to a development application after the applicant corrected discrepancies in the plans, ensuring compliance with planning controls and absence of adverse impacts.

Land and [ADDRESS] of New South Wales

CITATION : [NAME] v [NAME] [2006] NSWLEC 511

APPLICANT [NAME] PARTIES : RESPONDENT [NAME](S) : 10012 of 2006

CORAM: [NAME] C

KEY ISSUES: Development Application :- Section 96 Modification, accuracy of detailing

LEGISLATION CITED: Environmental planning and [ADDRESS] Environmental Plan

DATES OF HEARING: 15 and 17 August 2006

EX TEMPORE JUDGMENT DATE : 08/17/2006

APPLICANT [NAME], agent

LEGAL REPRESENTATIVES: RESPONDENT [NAME], solicitor SOLICITORS [NAME]

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

[NAME] C

17 August 2006

10012 of 2006 [NAME] v [NAME]

JUDGMENT

This decision was given extemporaneously. It has been revised and edited prior to publication.

Background 1 This appeal was lodged against council's refusal of a s 96 Modification application for a residence situated [ADDRESS], [ADDRESS].

2 The application was refused because council considered it lacked essential information to enable a full and proper assessment. Prior to the hearing, the matter was the subject of Case Management, which resulted in Directions being given for the applicant to provide additional information.

3 Consequently at the commencement of the hearing on 15 August, Mr [NAME] tendered the s 96 plans to be assessed, which became Exhibit A.

4 The on-site assessment of these plans, relative to the existing building revealed discrepancies with the position and detailing of the front balcony, the balcony window and the window detailing of the garage.

5 By consent the matter was adjourned to enable the applicant to rectify the s 96 plans. This has resulted in the revised plans, which are Exhibit D.

6 Mr [NAME] now submits that these modifications are acceptable as there are no significant non-compliances with the planning controls or adverse safety and amenity impacts.

7 Having considered the reports of [NAME], council's environmental health and building surveyor and the applicant's planners [NAME]' report, I am now satisfied that: o the s 96 modification relates to the same development, o the relevant controls are reasonably satisfied, o there are no adverse amenity or public interest impacts.

8 On this basis then, the s 96 Modifications should be granted. Court orders

1 The appeal is allowed. 2 The s 96 Modification to the dwelling at [ADDRESS], [ADDRESS], is approved, subject to the following conditions: 35A: The development consent No. 03 - 1168 (C) relates to the plans prepared by [NAME], Drawings Nos. 1083/06A, Sheets 1, 2, 3 and 4, dated May 2006. 54A: The false/dummy balcony is not to be used for trafficable purposes at any time. 3 The exhibits may be returned except D and 1. ___________________ [NAME] Commissioner of the Court rjs

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