193 Liverpool Road Pty Ltd ACN 163231810 v Inner West Council [2022] NSWLEC 1197

193 Liverpool Road Pty Ltd ACN 163231810 v Inner West Council [2022] NSWLEC 1197

The Court held that the proposed modification was not substantially the same as the consent originally granted due to the loss of a north-facing communal living space with solar access, the introduction of a residential laundry to the ground floor (changing the commercial-use character of that level), and the cumulative quantitative and qualitative changes (including increased room numbers and reduced amenities). The applicant had not satisfied the jurisdictional prerequisite under s 4.55(2)(a), and the appeal was dismissed.

Parties
Applicant: 193 Liverpool Road Pty Ltd ACN 163231810; Respondent: Inner West Council
Jurisdiction
Australia
Judgment Date
12 April 2022
Procedural Posture
Development Appeal / Judgment on Modification Application Under S 4.55 of the Environmental Planning and Assessment Act 1979
Outcome
Appeal dismissed
Legal Topics
Development Application Modification, Jurisdictional Prerequisite – Substantially the Same Development, Boarding House Planning Controls
Planning and Environment Law Development Application Modification Jurisdictional Prerequisite – Substantially the Same Development Boarding House Planning Controls

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Parties

193 Liverpool Road Pty Ltd ACN 163231810

Applicant

Inner West Council

Respondent

Procedural Posture

Development Appeal / Judgment on Modification Application Under S 4.55 of the Environmental Planning and Assessment Act 1979

Legal Issues

  1. 1 Whether the proposed modification is 'substantially the same development' as originally approved under s 4.55(2) of the Environmental Planning and Assessment Act 1979
  2. 2 Whether the introduction of new residential elements and the loss of communal space alter the development's essence

Ratio Decidendi

The Court held that the proposed modification was not substantially the same as the consent originally granted due to the loss of a north-facing communal living space with solar access, the introduction of a residential laundry to the ground floor (changing the commercial-use character of that level), and the cumulative quantitative and qualitative changes (including increased room numbers and reduced amenities). The applicant had not satisfied the jurisdictional prerequisite under s 4.55(2)(a), and the appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • All exhibits are retained.