Icon Construction Group Pty Ltd v Georges River Council [2019] NSWLEC 1517

Icon Construction Group Pty Ltd v Georges River Council [2019] NSWLEC 1517

The Court approved the agreed modification because the proposed removal of one basement car parking level and reduction from 70 to 56 off-street car parking spaces would leave a development substantially the same as the originally approved development, would have minimal environmental impact by reducing the building envelope and excavation, and would not affect the heritage significance of the retained terraces; the agreed monetary contribution addressed the 3-space shortfall against the Kogarah Development Control Plan 2012 requirement.

Jurisdiction
Australia
Judgment Date
31 October 2019
Procedural Posture
Class 1 Modification Application/appeal / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
The appeal is upheld and Modification Application MOD2019/0117 is approved subject to the consolidated conditions of consent at Annexure A.
Legal Topics
['modification Application to Remove One Basement Car Parking Level' 'reduction of Off Street Car Parking Spaces' 'section 34 Conciliation Agreement' 'substantially the Same Development' 'heritage Impact Assessment']
['planning and Environment' 'development Consent Modification' 'heritage Conservation'] ['modification Application to Remove One Basement Car Parking Level' 'reduction of Off Street Car Parking Spaces' 'section 34 Conciliation Agreement' 'substantially the Same Development' 'heritage Impact Assessment']

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Procedural Posture

Class 1 Modification Application/appeal / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreed decision was a decision the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether the jurisdictional prerequisites for modification under ss 4.55(8) and 5.10(4) of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the development as modified was substantially the same development as the development for which consent was originally granted.' 'Whether deletion of one basement car parking level and 14 car parking spaces was of minimal environmental impact.' 'Whether the modification would affect the heritage significance of the terraces known as the "Leah Building".']

Ratio Decidendi

The Court approved the agreed modification because the proposed removal of one basement car parking level and reduction from 70 to 56 off-street car parking spaces would leave a development substantially the same as the originally approved development, would have minimal environmental impact by reducing the building envelope and excavation, and would not affect the heritage significance of the retained terraces; the agreed monetary contribution addressed the 3-space shortfall against the Kogarah Development Control Plan 2012 requirement.

Court Disposition

The appeal is upheld and Modification Application MOD2019/0117 is approved subject to the consolidated conditions of consent at Annexure A.

Orders

  • ['The appeal is upheld.' 'Modification Application MOD2019/0117 to remove one level of basement car parking, resulting in 4 levels of basement car parking and a total of 56 off-street car parking spaces, is approved, subject to the consolidated conditions of consent at Annexure A.']