Ganley v Mosman Municipal Council [2021] NSWLEC 1124

Ganley v Mosman Municipal Council [2021] NSWLEC 1124

The development, as modified, is substantially the same as the development for which development consent was originally granted, as required by s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979. All other statutory and merit considerations, including gross floor area, landscaped area, view loss, and public interest, have been satisfactorily addressed by the Applicants through amended plans and expert evidence. Therefore, it is appropriate to grant the modification application subject to conditions.

Parties
First Applicant: Joseph Mark Ganley; Second Applicant: Erin Edith Ganley; Respondent: Mosman Municipal Council
Jurisdiction
Australia
Judgment Date
12 March 2021
Procedural Posture
Class 1 Appeal Under the Environmental Planning and Assessment Act 1979 / Appeal Determination Following Conciliation Conference
Outcome
Appeal upheld; modification application approved with conditions
Legal Topics
Modification of Development Consent, Gross Floor Area, Landscaped Area, View Loss, Statutory Prerequisites Under S 4.55 Environmental Planning and Assessment Act 1979
Planning Law Environmental Law Modification of Development Consent Gross Floor Area Landscaped Area View Loss Statutory Prerequisites Under S 4.55 Environmental Planning and Assessment Act 1979

Case Brief

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Parties

Joseph Mark Ganley

First Applicant

Erin Edith Ganley

Second Applicant

Mosman Municipal Council

Respondent

Procedural Posture

Class 1 Appeal Under the Environmental Planning and Assessment Act 1979 / Appeal Determination Following Conciliation Conference

Legal Issues

  1. 1 Whether the modified development is substantially the same as the development for which consent was originally granted under s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979
  2. 2 Whether the modification satisfies requirements concerning gross floor area and landscaped area
  3. 3 Whether view loss is significant as a result of the proposed modifications

Ratio Decidendi

The development, as modified, is substantially the same as the development for which development consent was originally granted, as required by s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979. All other statutory and merit considerations, including gross floor area, landscaped area, view loss, and public interest, have been satisfactorily addressed by the Applicants through amended plans and expert evidence. Therefore, it is appropriate to grant the modification application subject to conditions.

Court Disposition

Appeal upheld; modification application approved with conditions

Orders

  • The Applicants are granted leave to amend the modification application to rely on the further amending plans as listed at the end of Condition 1 of Annexure 'B'.
  • The appeal is upheld.