Randall v Ashfield Council [2014] NSWLEC 1034

Randall v Ashfield Council [2014] NSWLEC 1034

The application to modify the development consent is substantially the same as the original consent, as the changes do not alter its essential character or result in a radical transformation; SEPP 65 design verification requirements are not triggered as the original application was not required to be accompanied by such a statement; proposed modifications comply with relevant planning controls and do not result in material amenity impacts.

Parties
Applicant: David Randall; Respondent: Ashfield Council
Jurisdiction
Australia
Judgment Date
04 March 2014
Procedural Posture
Appeal / Final Judgment
Outcome
The appeal is upheld and the application to modify development consent is approved.
Legal Topics
Modification of Development Consent, Substantially the Same Development, Application of SEPP 65, Design Verification Statement Requirements, Compliance With Height and FSR Controls
Planning Law Modification of Development Consent Substantially the Same Development Application of SEPP 65 Design Verification Statement Requirements Compliance With Height and FSR Controls

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Parties

David Randall

Applicant

Ashfield Council

Respondent

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether the proposed modification is substantially the same development as previously approved
  2. 2 Whether State Environmental Planning Policy No 65 applies and requires a Design Verification Statement
  3. 3 Compliance with height, storey and FSR controls under LEP 2013

Ratio Decidendi

The application to modify the development consent is substantially the same as the original consent, as the changes do not alter its essential character or result in a radical transformation; SEPP 65 design verification requirements are not triggered as the original application was not required to be accompanied by such a statement; proposed modifications comply with relevant planning controls and do not result in material amenity impacts.

Court Disposition

The appeal is upheld and the application to modify development consent is approved.

Orders

  • The appeal is upheld.
  • The application under s 96(8) of the Environmental Planning and Assessment Act 1979 to modify, under s 96(2), the development consent DA10.2012.051 for the purposes of a residential development at 67-75 Smith Street, Summer Hill is determined by approving the modifications subject to the changes to the conditions of...