Innerwest 888 Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1241

Innerwest 888 Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1241

The proposed modification, involving an additional storey, increased height, greater number of apartments and car spaces, and changes to building bulk and setbacks, resulted in a development that was not substantially the same as the original consent, where a five-storey height limit was an essential element. Both qualitative and quantitative assessments established the development as proposed could not satisfy the 'substantially the same' test required under s96(2)(a) of the Environmental Planning and Assessment Act 1979, and accordingly the appeal had to be dismissed.

Jurisdiction
Australia
Judgment Date
16 May 2017
Procedural Posture
Modification of Development Consent Appeal (class 1) / Final (judgment and Orders)
Outcome
Appeal dismissed
Legal Topics
['modification of Development Consent' 'substantially the Same Development' 'development Standards' 'building Height' 'bulk and Scale' 'residential Apartment Development']
['environmental Law' 'planning Law'] ['modification of Development Consent' 'substantially the Same Development' 'development Standards' 'building Height' 'bulk and Scale' 'residential Apartment Development']

Case Brief

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Procedural Posture

Modification of Development Consent Appeal (class 1) / Final (judgment and Orders)

Legal Issues

  1. 1 ['Whether the modified development would be substantially the same as that approved under the original consent' 'Whether the height, bulk and scale of the additional building works are appropriate' 'Whether the principles of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development and the Apartment Design Guide are met' 'Whether the modification application would be in the public interest']

Ratio Decidendi

The proposed modification, involving an additional storey, increased height, greater number of apartments and car spaces, and changes to building bulk and setbacks, resulted in a development that was not substantially the same as the original consent, where a five-storey height limit was an essential element. Both qualitative and quantitative assessments established the development as proposed could not satisfy the 'substantially the same' test required under s96(2)(a) of the Environmental Planning and Assessment Act 1979, and accordingly the appeal had to be dismissed.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'The modification application that seeks to modify development consent 533/2012 by expanding the basement car park level, provide an additional level of residential accommodation and modify the approved strata title subdivision plan to incorporate the additional units and the associated...