Horseshoe Properties Pty Ltd v Tweed Shire Council [2021] NSWLEC 1507

Horseshoe Properties Pty Ltd v Tweed Shire Council [2021] NSWLEC 1507

The development as proposed to be modified is not substantially the same as the development the subject of the Original Consent because relocation of the dedicated open space (lot 465) alters an essential element of the approved development, with significant qualitative differences including topography, ecological features, adjacency to residential lots, and compliance with planning controls; therefore, the court lacks power to grant the modification and the appeals must fail.

Jurisdiction
Australia
Judgment Date
01 September 2021
Procedural Posture
Class 1 Appeal / Final Judgment
Outcome
Appeals dismissed; modification applications refused.
Legal Topics
['modification of Development Consent' 'substantially the Same Development Test' 'open Space Dedication']
['planning and Environment'] ['modification of Development Consent' 'substantially the Same Development Test' 'open Space Dedication']

Case Brief

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Procedural Posture

Class 1 Appeal / Final Judgment

Legal Issues

  1. 1 ['Whether the modified development is substantially the same as the development subject of the Original Consent' 'Whether the relocation of open space is an essential feature and alters the development' 'Interpretation of s 4.55(2) of the EP&A Act']

Ratio Decidendi

The development as proposed to be modified is not substantially the same as the development the subject of the Original Consent because relocation of the dedicated open space (lot 465) alters an essential element of the approved development, with significant qualitative differences including topography, ecological features, adjacency to residential lots, and compliance with planning controls; therefore, the court lacks power to grant the modification and the appeals must fail.

Court Disposition

Appeals dismissed; modification applications refused.

Orders

  • ['In matter 2019/343924: The appeal be dismissed.' 'Modification application S96/0066.22 in respect of Lot 469 in Deposited Plan 1144944, Henry Lawson Drive, Terranora is determined by refusal.' 'The exhibits be returned other than exhibits A, B, C and 4.' 'In matter 2020/181898: The appeal be dismissed.'...