Marana Developments Pty Limited v Botany City Council [2011] NSWLEC 1110

Marana Developments Pty Limited v Botany City Council [2011] NSWLEC 1110

The modified proposal passed the jurisdictional test in s 96(2)(a) because, despite changes to apartment mix, number of dwellings, unit layout, external appearance and parking, the final built form in scale, bulk, appearance and use remained substantially the same as the approved development. On the merits, the modified development satisfied the relevant LEP and zone objectives, the objectives of DCP35, the Desired Future Character for the Hillsdale precinct, and relevant SEPP65/RFDC considerations; the non-compliance with DCP numerical controls for unit size and mix did not warrant refusal.

Jurisdiction
Australia
Judgment Date
18 May 2011
Procedural Posture
Class 1 Appeal Pursuant to S 96(6) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a S 96(2) Modification Application / Principal Judgment
Outcome
Appeal upheld; development consent 09/102 modified to approve a 102 unit residential flat complex and basement carparking subject to modified conditions.
Legal Topics
['modification of Development Consent' 'substantially the Same Development' 'residential Flat Building' 'sepp65 Design Quality' 'development Control Plan Compliance' 'unit Size and Mix' 'residential Amenity']
['planning and Environment Law' 'development Consent Modification'] ['modification of Development Consent' 'substantially the Same Development' 'residential Flat Building' 'sepp65 Design Quality' 'development Control Plan Compliance' 'unit Size and Mix' 'residential Amenity']

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Procedural Posture

Class 1 Appeal Pursuant to S 96(6) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a S 96(2) Modification Application / Principal Judgment

Legal Issues

  1. 1 ['Whether the development as modified is substantially the same development as the development for which consent was originally granted.' 'Whether the modified development satisfies the objectives of the Botany Bay Local Environmental Plan 1995 and the Residential 2(b) zone objectives.' 'Whether the modified development is consistent with relevant provisions of City of Botany Bay Development Control Plan No. 35 and the Building Design and Construction Development Control Plan.' 'Whether the modified development satisfies relevant provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development and the Residential Flat Design Code.']

Ratio Decidendi

The modified proposal passed the jurisdictional test in s 96(2)(a) because, despite changes to apartment mix, number of dwellings, unit layout, external appearance and parking, the final built form in scale, bulk, appearance and use remained substantially the same as the approved development. On the merits, the modified development satisfied the relevant LEP and zone objectives, the objectives of DCP35, the Desired Future Character for the Hillsdale precinct, and relevant SEPP65/RFDC considerations; the non-compliance with DCP numerical controls for unit size and mix did not warrant refusal.

Court Disposition

Appeal upheld; development consent 09/102 modified to approve a 102 unit residential flat complex and basement carparking subject to modified conditions.

Orders

  • ['The appeal is upheld.' 'Development consent 09/102 issued by Botany Bay City Council on 25 May 2009 which authorised the demolition of the existing dwelling on Lot 1 and residential flat building on Lot 2, resubdivision of Lots 1 and 1, creation of a Right of Way over Lot 1 for vehicular access, the construction...