Entrepreneur Enterprises Pty Ltd v Lane Cove Council [2020] NSWLEC 1572

Entrepreneur Enterprises Pty Ltd v Lane Cove Council [2020] NSWLEC 1572

The application failed because the proposed modification would have adverse impacts on parking and traffic, would alter the character and operation of the approved child care centre, require changes in building design and management, and introduce significant constraints on use of play areas. These changes were not of minimal environmental impact, and the modified development was not substantially the same as originally approved. Therefore, the jurisdictional test under s 4.55(1A) of the Environmental Planning and Assessment Act 1979 could not be met.

Jurisdiction
Australia
Judgment Date
20 November 2020
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal dismissed
Legal Topics
['modification of Development Consent' 'child Care Centre' 'car Parking Requirements' 'noise Impact' 'amenity Impacts' 'environmental Planning and Assessment Act 1979']
['planning and Environment'] ['modification of Development Consent' 'child Care Centre' 'car Parking Requirements' 'noise Impact' 'amenity Impacts' 'environmental Planning and Assessment Act 1979']

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Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 ['Whether the proposed modification is of minimal environmental impact under s 4.55(1A) of the Environmental Planning and Assessment Act 1979' 'Whether the development as modified would be substantially the same as that approved under the original consent' 'Whether parking available on site is adequate to cater for the needs of staff and visitors' 'Whether the amenity impacts of the development will adversely affect both children within the centre and adjoining properties']

Ratio Decidendi

The application failed because the proposed modification would have adverse impacts on parking and traffic, would alter the character and operation of the approved child care centre, require changes in building design and management, and introduce significant constraints on use of play areas. These changes were not of minimal environmental impact, and the modified development was not substantially the same as originally approved. Therefore, the jurisdictional test under s 4.55(1A) of the Environmental Planning and Assessment Act 1979 could not be met.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'The modification application lodged with Lane Cove Council on 8 May 2019 that sought to modify development consent DA 148/2015 by increasing the number of child care places from 56 to 93 is refused.' 'The exhibits, other than exhibits 1, A and E, are returned.']