Abernethy Developments P/L v Cessnock City Council [2011] NSWLEC 1123

Abernethy Developments P/L v Cessnock City Council [2011] NSWLEC 1123

The proposed modification did not satisfy s96 because it would produce a materially different development outcome from the original consent, both quantitatively and qualitatively: it would initially create two lots rather than complete the approved eleven lot subdivision, retain the existing dwelling, create a different right of access, delay road, water, drainage and landscaping works, and leave an uncertain timeframe for completion of Phase 2. The phasing proposal was also inconsistent with the staged development provisions of the EP&A Act where staging had not been identified in the original application. The appeal was therefore dismissed and the modification refused.

Jurisdiction
Australia
Judgment Date
23 May 2011
Procedural Posture
Class 1 Appeal From Refusal to Support a S96 Application to Modify Development Consent for an 11 Lot Subdivision / Determination After S34 Conference With No Agreement Reached
Outcome
Appeal dismissed
Legal Topics
['modification of Development Consent' 'subdivision' 'substantially the Same Development' 'staged Development Applications' 'public Interest and Orderly Development' 'draft Local Environmental Plan']
['planning and Environment Law'] ['modification of Development Consent' 'subdivision' 'substantially the Same Development' 'staged Development Applications' 'public Interest and Orderly Development' 'draft Local Environmental Plan']

Case Brief

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Procedural Posture

Class 1 Appeal From Refusal to Support a S96 Application to Modify Development Consent for an 11 Lot Subdivision / Determination After S34 Conference With No Agreement Reached

Legal Issues

  1. 1 ['Whether the proposed modification related to substantially the same development as the originally approved 11 lot subdivision under s96(2) of the EP&A Act 1979.' 'Whether the proposed phasing of the subdivision was appropriate when staging was not pursued in the original development application.' 'Whether the interim access arrangements and retention of the existing dwelling were acceptable.' 'Whether public interest matters, including water supply, runoff impacts, road upgrading and orderly provision of services, supported refusal.']

Ratio Decidendi

The proposed modification did not satisfy s96 because it would produce a materially different development outcome from the original consent, both quantitatively and qualitatively: it would initially create two lots rather than complete the approved eleven lot subdivision, retain the existing dwelling, create a different right of access, delay road, water, drainage and landscaping works, and leave an uncertain timeframe for completion of Phase 2. The phasing proposal was also inconsistent with the staged development provisions of the EP&A Act where staging had not been identified in the original application. The appeal was therefore dismissed and the modification refused.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'The s96 application to modify the 11- lot subdivision approval of Lot 2 DP 840845 Ferguson Street, Abernethy is refused.' 'The exhibits may be returned except for A and 6.']