Ausbay Construction Pty Ltd v Inner West Council [2022] NSWLEC 1617

Ausbay Construction Pty Ltd v Inner West Council [2022] NSWLEC 1617

The modified development is substantially the same as the originally approved development and satisfies all statutory preconditions for modification; therefore, the modification application appeal is upheld and consent is modified accordingly.

Parties
Applicant: Ausbay Construction Pty Ltd; Respondent: Inner West Council
Jurisdiction
Australia
Judgment Date
01 December 2022
Procedural Posture
Class 1 Modification Application Appeal / Judgment After Conciliation Conference, Agreement and Proposed Orders
Outcome
Appeal upheld. Development consent modified.
Legal Topics
Modification of Development Consent, Residential Flat Building, Conciliation Conference, Local Environmental Plans, Section 4.55 EPA Act
Planning Law Environmental Law Modification of Development Consent Residential Flat Building Conciliation Conference Local Environmental Plans Section 4.55 EPA Act

Case Brief

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Parties

Ausbay Construction Pty Ltd

Applicant

Inner West Council

Respondent

Procedural Posture

Class 1 Modification Application Appeal / Judgment After Conciliation Conference, Agreement and Proposed Orders

Legal Issues

  1. 1 Whether the proposed modification is substantially the same development as that for which consent was originally granted
  2. 2 Compliance with statutory preconditions for modification of consent under s 4.55(2) of the Environmental Planning and Assessment Act 1979

Ratio Decidendi

The modified development is substantially the same as the originally approved development and satisfies all statutory preconditions for modification; therefore, the modification application appeal is upheld and consent is modified accordingly.

Court Disposition

Appeal upheld. Development consent modified.

Orders

  • Leave granted to applicant to amend the application and rely on amended materials listed under condition 4 of consolidated conditions of consent at Annexure A.
  • The appeal is upheld.