Arrage v Inner West Council [2018] NSWLEC 1628

Arrage v Inner West Council [2018] NSWLEC 1628

The proposed modified development was not substantially the same as the development originally approved because it differed in important quantitative and qualitative respects, including increased units, FSR, height and storeys, reduced communal open space, removal of internal communal room space and reduced functionality of rooftop communal open space for an increased number of residents. The jurisdictional precondition in s 4.55(2) was not met, so the Court had no power to approve the modification application.

Jurisdiction
Australia
Judgment Date
07 December 2018
Procedural Posture
Class 1 Appeal Against Refusal of Application to Modify Development Consent / Final Hearing and Orders
Outcome
The appeal was dismissed and the application to modify the development consent was refused.
Legal Topics
['modification of Development Consent' 'substantially the Same Development' 'shop Top Housing' 'sepp 65' 'building Height and Floor Space Ratio' 'communal Open Space']
['planning and Environment Law'] ['modification of Development Consent' 'substantially the Same Development' 'shop Top Housing' 'sepp 65' 'building Height and Floor Space Ratio' 'communal Open Space']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Application to Modify Development Consent / Final Hearing and Orders

Legal Issues

  1. 1 ["Whether the Applicant's modification application was substantially the same development as the development for which consent was originally granted, as required under s 4.55(2) of the Environmental Planning and Assessment Act 1979." "Whether the Applicant's modification application represented a form of development by creep." 'Whether the proposed development satisfactorily addressed the design principles in State Environmental Planning Policy no. 65 – Design Quality of Residential Apartment Development.' 'Whether the proposed modification application met the objectives of clauses 4.3 and 4.4 of Marrickville Local Environment Plan 2011 concerning height and FSR controls applicable to the Subject Site.' 'Whether the proposed modification application satisfactorily addressed the applicable provisions of Marrickville Development Control Plan 2011.' "Whether the Applicant's modification application was in the public interest."]

Ratio Decidendi

The proposed modified development was not substantially the same as the development originally approved because it differed in important quantitative and qualitative respects, including increased units, FSR, height and storeys, reduced communal open space, removal of internal communal room space and reduced functionality of rooftop communal open space for an increased number of residents. The jurisdictional precondition in s 4.55(2) was not met, so the Court had no power to approve the modification application.

Court Disposition

The appeal was dismissed and the application to modify the development consent was refused.

Orders

  • ['The appeal is dismissed.' 'The application to modify the development consent granted by the Court for DA201500129, is determined by refusal.' 'The exhibits are returned, with the exception of Exhibits A and 1.']