AG Kellyville Pty Ltd v The Hills Shire Council [2020] NSWLEC 1205

AG Kellyville Pty Ltd v The Hills Shire Council [2020] NSWLEC 1205

The Court found that the proposed modifications comprising additional units and rooftop alterations did not materially alter the approved development, and the modified development was substantially the same as that originally approved; the density increase was acceptable and compatible with precinct objectives, and there was no unacceptable environmental impact.

Parties
Applicant: AG Kellyville Pty Ltd; Respondent: The Hills Shire Council
Jurisdiction
Australia
Judgment Date
06 May 2020
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal upheld
Legal Topics
Modification Application, Substantial Sameness, Residential Density, Development Consent
Planning Law Administrative Law Modification Application Substantial Sameness Residential Density Development Consent

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Parties

AG Kellyville Pty Ltd

Applicant

The Hills Shire Council

Respondent

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether the modified development is substantially the same pursuant to s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979 as the original development for which development consent was granted
  2. 2 Whether the number of additional dwellings proposed is excessive and inconsistent with density objectives

Ratio Decidendi

The Court found that the proposed modifications comprising additional units and rooftop alterations did not materially alter the approved development, and the modified development was substantially the same as that originally approved; the density increase was acceptable and compatible with precinct objectives, and there was no unacceptable environmental impact.

Court Disposition

Appeal upheld

Orders

  • The appeal is upheld
  • Modification Application No. 1666/2016/HB/D to modify the approved development for two residential flat buildings at Lot 11 Nightcap Road, North Kellyville by adding access and a terrace to the rooftop level of Building A and two units to the rooftop level of Building B and other changes, is approved, subject to the...