Hercules St Developments Pty Limited v Ashfield Council [2015] NSWLEC 1378

Hercules St Developments Pty Limited v Ashfield Council [2015] NSWLEC 1378

The proposed modifications alter important and material features of the original consent—including height, bulk, scale, and public benefit—that were fundamental to the circumstances in which the original approval was granted. The applicant has not demonstrated that the modified development is substantially the same as the original; thus the Court lacks jurisdiction to grant the modification under s 96(2) of the EPA Act.

Jurisdiction
Australia
Judgment Date
18 September 2015
Procedural Posture
Appeal Class 1 (land and Environment Court) / Final Determination Appeal of Modification Application Refusal
Outcome
Appeal dismissed
Legal Topics
['development Consent Modification' 'floor Space Ratio (fsr)' 'building Height' 'parking Requirements' 'heritage Conservation Incentives' 'substantially the Same Test' 'public Benefit Provisions']
['planning Law' 'environmental Law'] ['development Consent Modification' 'floor Space Ratio (fsr)' 'building Height' 'parking Requirements' 'heritage Conservation Incentives' 'substantially the Same Test' 'public Benefit Provisions']

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Procedural Posture

Appeal Class 1 (land and Environment Court) / Final Determination Appeal of Modification Application Refusal

Legal Issues

  1. 1 ["Whether the proposed modification application is for 'substantially the same development' as originally approved under s 96(2) of the Environmental Planning and Assessment Act 1979" 'Whether the modifications result in unacceptable height, FSR or parking non-compliance' 'Whether the absence of new public benefits removes justification for increased height and FSR concessions' 'Whether bulk, scale and setbacks at upper levels are materially changed']

Ratio Decidendi

The proposed modifications alter important and material features of the original consent—including height, bulk, scale, and public benefit—that were fundamental to the circumstances in which the original approval was granted. The applicant has not demonstrated that the modified development is substantially the same as the original; thus the Court lacks jurisdiction to grant the modification under s 96(2) of the EPA Act.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'Modification Application 10.2013.176.3 lodged on 6 March 2015 to modify Development Consent 10.2013.176.1 granted on 10 December 2013 by adding two units on level 7 and a roof-top outdoor area, 11-13 Hercules Street, Ashfield, is refused.' 'The exhibits are returned.']