Wang v City of Canterbury-Bankstown Council [2017] NSWLEC 1120

Wang v City of Canterbury-Bankstown Council [2017] NSWLEC 1120

The appeal is upheld because the application to modify the development consent was made while the consent remained on foot; the modification (extension from 3 to 10 years) is 'substantially the same development'; and the merits assessment discloses no sufficient planning, amenity, or public interest basis to refuse the extension, notwithstanding current zoning and DCP provisions.

Jurisdiction
Australia
Judgment Date
10 March 2017
Procedural Posture
Appeal Modification of Development Consent / Final Judgment in Class 1 Appeal
Outcome
Appeal upheld; development consent modified as sought.
Legal Topics
['modification of Development Consent' 'brothels and Sex Services Premises' 'zoning Prohibitions' 'development Control Plans (dcp)' 'existing Use Rights' 'merit Assessment Under EPA Act']
['planning Law' 'environmental Law' 'administrative Law'] ['modification of Development Consent' 'brothels and Sex Services Premises' 'zoning Prohibitions' 'development Control Plans (dcp)' 'existing Use Rights' 'merit Assessment Under EPA Act']

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Procedural Posture

Appeal Modification of Development Consent / Final Judgment in Class 1 Appeal

Legal Issues

  1. 1 ['Whether development consent had lapsed and remained capable of modification under s 96AA of the Environmental Planning and Assessment Act 1979 (NSW)' "Whether modification to extend trial period from 3 to 10 years is 'substantially the same development'" 'Whether merit considerations, including non-compliance with current zoning and DCP, bars the modification']

Ratio Decidendi

The appeal is upheld because the application to modify the development consent was made while the consent remained on foot; the modification (extension from 3 to 10 years) is 'substantially the same development'; and the merits assessment discloses no sufficient planning, amenity, or public interest basis to refuse the extension, notwithstanding current zoning and DCP provisions.

Court Disposition

Appeal upheld; development consent modified as sought.

Orders

  • ['The appeal is upheld.' "Condition 6 of Development Consent No. 220/2012 is modified by replacing 'three (3) years' with 'ten (10) years'." 'The Exhibits are returned, save for Exhibits 1 and A.']