Gregory v Central Coast Council [2016] NSWLEC 1652

Gregory v Central Coast Council [2016] NSWLEC 1652

The proposed modification was not substantially the same development as the original approval because, despite the use remaining a boarding house, reinstating the three-storey western wing near the Glen Road frontage would materially and essentially alter the approved development when assessed qualitatively and quantitatively, including by increasing rooms, footprint and gross floor area, reducing setbacks, increasing bulk and local character impacts, and causing additional amenity impacts. The application therefore failed the s 96(2) threshold and the merits assessment under s 96(3) could not be reached.

Jurisdiction
Australia
Judgment Date
15 December 2016
Procedural Posture
Class 1 Appeal Against Refusal of Application Number Da/1034/2013 a Made Under S 96(2) of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent / Threshold Question Whether the Proposed Modification Was Substantially the Same Development as the Development for Which Consent Was Originally Granted; Final Orders
Outcome
The appeal is dismissed and Application Number DA/1034/2013-A is refused.
Legal Topics
['modification of Development Consent' 'boarding House Development' 'substantially the Same Development Test' 'affordable Rental Housing' 'qualitative and Quantitative Comparison']
['planning and Environment Law'] ['modification of Development Consent' 'boarding House Development' 'substantially the Same Development Test' 'affordable Rental Housing' 'qualitative and Quantitative Comparison']

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Procedural Posture

Class 1 Appeal Against Refusal of Application Number Da/1034/2013 a Made Under S 96(2) of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent / Threshold Question Whether the Proposed Modification Was Substantially the Same Development as the Development for Which Consent Was Originally Granted; Final Orders

Legal Issues

  1. 1 ['Whether the proposed modification to delete or amend conditions of consent, principally condition 1 requiring deletion of the western wing building containing 18 boarding house units, was substantially the same development as the development for which consent was originally granted under s 96(2)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether qualitative and quantitative differences, including increased boarding rooms, building footprint, gross floor area, reduced setbacks, bulk, scale, solar access, overshadowing and overlooking, meant the modified proposal did not have the same essence as the approved development.']

Ratio Decidendi

The proposed modification was not substantially the same development as the original approval because, despite the use remaining a boarding house, reinstating the three-storey western wing near the Glen Road frontage would materially and essentially alter the approved development when assessed qualitatively and quantitatively, including by increasing rooms, footprint and gross floor area, reducing setbacks, increasing bulk and local character impacts, and causing additional amenity impacts. The application therefore failed the s 96(2) threshold and the merits assessment under s 96(3) could not be reached.

Court Disposition

The appeal is dismissed and Application Number DA/1034/2013-A is refused.

Orders

  • ['The appeal is dismissed.' "Application Number DA/1034/2013-A that seeks to modify the development consent granted by the Hunter and Central Coast Joint Regional Planning Panel for a boarding house and manager's residence at 2 - 6 Glen Road, Ourimbah is refused." 'The exhibits are returned with the exception of...