Graham & Sanders Pty Ltd v Camden Council [2022] NSWLEC 1278

Graham & Sanders Pty Ltd v Camden Council [2022] NSWLEC 1278

The Court was satisfied that the development as modified would remain substantially the same development, because the essential features of a two-storey commercial development with three commercial tenancies, a café and attic-level commercial space would not change. The statutory preconditions in s 4.55(2) were met, including notification and consideration of submissions. On the merits, the additional height exceedance and change to a gabled rear roof form were minor in impact, would not be readily perceived from the street, would make little difference to perceived bulk and scale from adjoining properties, and would not have an unacceptable heritage impact on the Camden Town Centre...

Jurisdiction
Australia
Judgment Date
02 June 2022
Procedural Posture
Class 1 Modification Application Under S 4.55(8) of the Environmental Planning and Assessment Act 1979 / Final Determination of Application to Modify a Development Consent Granted by the Court
Outcome
Appeal upheld; modification application approved subject to conditions.
Legal Topics
['commercial Development and Cafe' 'modification to Alter Roof Form' 'substantially the Same Development' 'height Development Standard' 'heritage Conservation Area Impact' 'public Interest']
['planning and Environment' 'development Consent Modification' 'heritage Conservation'] ['commercial Development and Cafe' 'modification to Alter Roof Form' 'substantially the Same Development' 'height Development Standard' 'heritage Conservation Area Impact' 'public Interest']

Case Brief

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Procedural Posture

Class 1 Modification Application Under S 4.55(8) of the Environmental Planning and Assessment Act 1979 / Final Determination of Application to Modify a Development Consent Granted by the Court

Legal Issues

  1. 1 ['Whether the development as proposed to be modified is substantially the same development as the development for which consent was originally granted.' 'Whether the proposed gabled roof form and related changes amounted to overdevelopment of the site by reason of height, bulk, scale and roof form.' 'Whether the proposed modifications were inconsistent with the character of the Camden Town Centre Conservation Area or would detrimentally affect nearby heritage items.' 'Whether approval of the modification application would be contrary to the public interest, including by reason of objector submissions or alleged precedent.' 'What weight should be given under s 4.55(3) of the Environmental Planning and Assessment Act 1979 to the reasons for the grant of the original consent and to evidence from the earlier appeal.']

Ratio Decidendi

The Court was satisfied that the development as modified would remain substantially the same development, because the essential features of a two-storey commercial development with three commercial tenancies, a café and attic-level commercial space would not change. The statutory preconditions in s 4.55(2) were met, including notification and consideration of submissions. On the merits, the additional height exceedance and change to a gabled rear roof form were minor in impact, would not be readily perceived from the street, would make little difference to perceived bulk and scale from adjoining properties, and would not have an unacceptable heritage impact on the Camden Town Centre...

Court Disposition

Appeal upheld; modification application approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'Modification application DA/2018/599/2 made to the Court on 18 October 2021 is approved and development consent DA/2018/559/1 granted by the Court on 30 July 2021 for the demolition of an existing dwelling house and the construction of a commercial development comprising three commercial...