Kolpos Pty Ltd v Canterbury Bankstown Council [2016] NSWLEC 1572

Kolpos Pty Ltd v Canterbury Bankstown Council [2016] NSWLEC 1572

The modification applications failed because the proposed changes were not 'substantially the same' as the original development—quantitatively and qualitatively the proposed modifications (increase in height, number of units, reconfiguration, and introduction of a laneway and new access) constituted a radical transformation. Further, the proposal significantly exceeded the height of buildings development standard without adequate justification or sufficient public interest grounds, and was inconsistent with the planning objectives.

Jurisdiction
Australia
Judgment Date
01 December 2016
Procedural Posture
Appeal Under Environmental Planning and Assessment Act 1979 (ss 97 and 97 Aa) Consolidated Proceedings / Final Judgment
Outcome
Appeals dismissed; applications refused.
Legal Topics
['modification Applications' 'development Standards' 'height of Buildings' 'public Interest' 'substantial Sameness' 'overshadowing' 'urban Design' 'land Zoning']
['planning and Environment Law'] ['modification Applications' 'development Standards' 'height of Buildings' 'public Interest' 'substantial Sameness' 'overshadowing' 'urban Design' 'land Zoning']

Case Brief

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Procedural Posture

Appeal Under Environmental Planning and Assessment Act 1979 (ss 97 and 97 Aa) Consolidated Proceedings / Final Judgment

Legal Issues

  1. 1 ['Whether the modification applications were substantially the same as the approved development under s 96(2)(a) of the EPA Act' 'Whether the exceedance of the height of buildings development standard could be justified under cl 4.6 of LEP 2012' 'Whether the proposed development was consistent with planning objectives and the public interest']

Ratio Decidendi

The modification applications failed because the proposed changes were not 'substantially the same' as the original development—quantitatively and qualitatively the proposed modifications (increase in height, number of units, reconfiguration, and introduction of a laneway and new access) constituted a radical transformation. Further, the proposal significantly exceeded the height of buildings development standard without adequate justification or sufficient public interest grounds, and was inconsistent with the planning objectives.

Court Disposition

Appeals dismissed; applications refused.

Orders

  • ['The appeals are dismissed.' 'Modification Application No.s DA576/2015/B and DA528/2015/B for an additional two floors to the approved development, rear laneway and changes to the basement parking and apartment layouts at 418-422 and 424-426 Canterbury Road, Campsie, are refused.' 'Development Application No.s...