Hatziandreou Holdings Pty Ltd v Bayside Council [2020] NSWLEC 1191

Hatziandreou Holdings Pty Ltd v Bayside Council [2020] NSWLEC 1191

The modification application could not be approved because the precondition in s 4.55(2) of the Environmental Planning and Assessment Act 1979 was not satisfied. The approved development materially included ground floor communal open space between two component buildings contiguous with deep soil landscaping, with additional communal open space within the built form at the fifth storey. The modified development substantially reduced the ground floor and fourth floor communal open space, removed all deep soil landscaping, reduced separation between the two buildings and introduced a rooftop communal area. Those quantitative and qualitative changes altered an essential element of the...

Jurisdiction
Australia
Judgment Date
24 April 2020
Procedural Posture
Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application Under S 4.55(2) / Principal Judgment After Conciliation Conference Was Terminated and the Parties Consented to the Commissioner Hearing and Disposing of the Proceedings
Outcome
Appeal dismissed; modification application refused.
Legal Topics
['whether Modified Development Is Substantially the Same Development' 'mixed Use Development' 'communal Open Space and Deep Soil Landscaping' 'floor Space Ratio and Building Height' 'traffic and Parking Impacts' 'loading Facilities and Vehicular Queuing']
['planning and Environment' 'development Consent Modification' 'land and Environment Court Procedure'] ['whether Modified Development Is Substantially the Same Development' 'mixed Use Development' 'communal Open Space and Deep Soil Landscaping' 'floor Space Ratio and Building Height' 'traffic and Parking Impacts' 'loading Facilities and Vehicular Queuing']

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Procedural Posture

Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application Under S 4.55(2) / Principal Judgment After Conciliation Conference Was Terminated and the Parties Consented to the Commissioner Hearing and Disposing of the Proceedings

Legal Issues

  1. 1 ['Whether the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted under s 4.55(2) of the Environmental Planning and Assessment Act 1979.' 'Whether the loss and relocation of communal open space, deletion of deep soil landscaping, reduced building separation and roof terrace changed an essential element of the approved development.' 'Whether, if the modification power existed, the traffic and parking information was sufficient to show acceptable impacts, including the commercial parking shortfall and queuing in Clelland Lane caused by the absence of a loading dock.']

Ratio Decidendi

The modification application could not be approved because the precondition in s 4.55(2) of the Environmental Planning and Assessment Act 1979 was not satisfied. The approved development materially included ground floor communal open space between two component buildings contiguous with deep soil landscaping, with additional communal open space within the built form at the fifth storey. The modified development substantially reduced the ground floor and fourth floor communal open space, removed all deep soil landscaping, reduced separation between the two buildings and introduced a rooftop communal area. Those quantitative and qualitative changes altered an essential element of the...

Court Disposition

Appeal dismissed; modification application refused.

Orders

  • ['The appeal is dismissed.' 'The application to modify the development consent for the mixed use development at 336-340 Rocky Point Road, Ramsgate, so as to incorporate the development as constructed as well as the proposed works set out in Annexure I to Exhibit 5, is refused.' 'The exhibits are returned, except for...