Powell v City of Sydney Council

The applicant's position 15The applicant, however, maintains that when looking at the development as a whole, the change to this aspect of the original approval is a minor change. While the structure is some 4 m2 larger and for use as a habitable space for the adjacent ground-floor apartment, the applicant contends the development is essentially the same development originally approved because this aspect of the development approved by the original consent was minor in the whole development. The applicant submits the whole development covered an area of some 700 m², in that context the proposed additional 29 m² of habitable space is minimal and therefore, does not substantially change the originally approved development. 16In short, after a qualitative and quantitative assessment of the application, the essence off the development is the same: Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 (24 February 1992). 17Mr Lovell was of the opinion that the use was the same. The original consent allowed people to occupy a space, albeit in an outdoor structure, and the same occupation is provided for in the proposed enclosed indoor structure. While he agreed that the entry doors to the lounge room area would in all likelihood be the main entrance to the apartment, he did not accept that this changed the development. In his planning assessment he told the Court that holistically the development was substantially the same as that originally approved. The applicant relies on the judgment of Mason P in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, and submits that s 96(2) is to be regarded as a "facultative, beneficial provision" it is to be construed and applied in a way that is favourable to those who seek to benefit from the provision.

Jurisdiction 12The Council contends that, given the originally approved open form of the shelter structure and its intended use as part of the private open space area of the adjacent apartment, the changes proposed to the shelter structure by this application to modify it for use as a lounge room, changes the essence and fundamental nature of the structure as originally approved. On that basis, the Council contends that the structure cannot be considered as "substantially the same" development as originally approved. In support of its case, the Council invites the Court to compare the original consent with the proposal from both a qualitative and quantitative assessment as discussed by Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 and subsequent legal authorities. 13It is the Council's case that the use of this habitable space outside the footprint of the building approved by the original consent and accessed through a substantial double door cannot be substantially the same development described as a "roofed privacy screen to garage roof deck" in the Notice of Determination issued to the applicant in respect of the original consent on 22 April 2005. Nor does it meet a description as a "roofed privacy screen aligning with the western most edge of the balconies at 2 Holdsworth Avenue". (Condition 2 of the Notice of Determination exhibit 2) 14Accepting that the use of the building can change the essence of the development, the Council submits, consistent with its Notice of Determination, that there is simply no jurisdiction to approve the modification application before the Court and therefore the appeal must be dismissed.

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Judgment (2 paragraphs)

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Cases Cited (3)