Geitonia Pty Limited v Leichhardt Council [2012] NSWLEC 1263

Geitonia Pty Limited v Leichhardt Council [2012] NSWLEC 1263

Although the reconstructed facade could, subject to conditions, satisfy the quantitative aspect of the substantially the same development test, the modification failed qualitatively. The original consent depended significantly on retention and in situ restoration of the existing facade, particularly the shopfronts, and the demolition and proposed reconstruction were inconsistent with the heritage conservation objectives in cl 15 of the Leichhardt Local Environmental Plan 2000. The loss of the original facade altered a fundamental element informing the essence and circumstances of the original consent, so the modified development was not substantially the same development and the...

Jurisdiction
Australia
Judgment Date
06 September 2012
Procedural Posture
Class 1 Appeal Concerning an Application to Modify Development Consent D/2002/668 Under S 96(2) of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment After Hearing
Outcome
Appeal dismissed and application to modify development consent refused.
Legal Topics
['substantially the Same Development' 'quantitative and Qualitative Assessment of Modification' 'retention or Reconstruction of Heritage Facade' 'leichhardt Local Environmental Plan 2000 Heritage Objectives']
['planning and Environment Law' 'development Consent Modification' 'heritage Conservation'] ['substantially the Same Development' 'quantitative and Qualitative Assessment of Modification' 'retention or Reconstruction of Heritage Facade' 'leichhardt Local Environmental Plan 2000 Heritage Objectives']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning an Application to Modify Development Consent D/2002/668 Under S 96(2) of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed modification to reconstruct the demolished Parramatta Road facade would result in a development that remained substantially the same development as originally approved under s 96(2) of the Environmental Planning and Assessment Act 1979.' 'Whether the modification satisfied the quantitative and qualitative aspects of the substantially the same development test.' 'Whether inconsistency with cl 15 Heritage Conservation Objectives in the Leichhardt Local Environmental Plan 2000 and the loss of the retained original facade warranted refusal.']

Ratio Decidendi

Although the reconstructed facade could, subject to conditions, satisfy the quantitative aspect of the substantially the same development test, the modification failed qualitatively. The original consent depended significantly on retention and in situ restoration of the existing facade, particularly the shopfronts, and the demolition and proposed reconstruction were inconsistent with the heritage conservation objectives in cl 15 of the Leichhardt Local Environmental Plan 2000. The loss of the original facade altered a fundamental element informing the essence and circumstances of the original consent, so the modified development was not substantially the same development and the...

Court Disposition

Appeal dismissed and application to modify development consent refused.

Orders

  • ['The appeal is dismissed.' 'Application to modify development consent D/2002/668 granted by Leichhardt Council on 22 December 2005 is determined by refusal.' 'The exhibits, other than Exhibits A, B and 5, are returned.']