FPG No. 2 Pty Ltd v Randwick City Council [2018] NSWLEC 1300

FPG No. 2 Pty Ltd v Randwick City Council [2018] NSWLEC 1300

The modification application failed the jurisdictional requirement in s 4.55(2)(a) because, in the context of the original approval, deletion of the roof terrace and lowering of the building were essential changes required to make the development acceptable. Reintroducing the private roof terrace would add structures above the approved height, enable rooftop use, provide substantial additional private open space to one dwelling and materially affect views and amenity, so the modified development was not substantially the same as the approved development. The Court therefore had no power to grant consent and the appeal had to be dismissed.

Jurisdiction
Australia
Judgment Date
20 June 2018
Procedural Posture
Class 1 Appeal Against Refusal of a Modification Application / Principal Judgment
Outcome
Appeal dismissed; modification application refused.
Legal Topics
['whether Modified Development Is Substantially the Same Development' 'private Roof Terrace on Residential Flat Building' 'neighbour Amenity Impacts' 'view Loss' 'privacy and Acoustic Impacts' 'merits of Modification Application']
['planning and Environment' 'development Consent Modification' 'residential Development'] ['whether Modified Development Is Substantially the Same Development' 'private Roof Terrace on Residential Flat Building' 'neighbour Amenity Impacts' 'view Loss' 'privacy and Acoustic Impacts' 'merits of Modification Application']

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Procedural Posture

Class 1 Appeal Against Refusal of a Modification Application / Principal Judgment

Legal Issues

  1. 1 ['Whether Modification Application 674/2014/C satisfied s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979 by being substantially the same development as the development originally approved.' 'If the jurisdictional test was satisfied, whether the proposed private roof terrace should be approved on its merits having regard to view loss, privacy, acoustic and visual impacts on neighbours.' 'Whether the proposed roof terrace complied with relevant planning controls and objectives, including controls for roof terraces and neighbour amenity.']

Ratio Decidendi

The modification application failed the jurisdictional requirement in s 4.55(2)(a) because, in the context of the original approval, deletion of the roof terrace and lowering of the building were essential changes required to make the development acceptable. Reintroducing the private roof terrace would add structures above the approved height, enable rooftop use, provide substantial additional private open space to one dwelling and materially affect views and amenity, so the modified development was not substantially the same as the approved development. The Court therefore had no power to grant consent and the appeal had to be dismissed.

Court Disposition

Appeal dismissed; modification application refused.

Orders

  • ['The appeal is dismissed.' 'Modification Application 674/2014/C for a private roof terrace accessed by new stairs proposed on a residential flat building at 352 Clovelly Road, Clovelly is refused.' 'The exhibits are returned except Exhibits A and 1.']