North Shore Property Developments Pty Ltd v Lane Cove Council [2013] NSWLEC 1140

North Shore Property Developments Pty Ltd v Lane Cove Council [2013] NSWLEC 1140

The Court was not satisfied that the proposed modified development was substantially the same as the development approved in the Original Consent. The cumulative effect of increased height from a predominantly four storey to a predominantly five storey building, increased excavation, changed floor levels and unit arrangements, relocation and increase of lifts, altered exterior appearance, reduced deep soil and eastern setback, changed landscaping and tree impacts, increased units and vehicles, changed unit mix, and different amenity impacts produced a building with materially different scale, bulk, form, appearance and impacts. The development was radically transformed and did not retain...

Jurisdiction
Australia
Judgment Date
31 July 2013
Procedural Posture
Class 1 Appeal/application Under S 96(8) of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent Under S 96(2) / Principal Judgment After Hearing
Outcome
The appeal was dismissed and the modification application was refused.
Legal Topics
['section 96 Modification Application' 'substantially the Same Development' 'residential Flat Building' 'building Height, Bulk, Scale and Amenity Impacts']
['planning and Environment' 'development Consent Modification'] ['section 96 Modification Application' 'substantially the Same Development' 'residential Flat Building' 'building Height, Bulk, Scale and Amenity Impacts']

Case Brief

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Procedural Posture

Class 1 Appeal/application Under S 96(8) of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent Under S 96(2) / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the development proposed in the modification application was substantially the same development as the development approved in the Original Consent for the purposes of s 96(2)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed additional storey was acceptable.']

Ratio Decidendi

The Court was not satisfied that the proposed modified development was substantially the same as the development approved in the Original Consent. The cumulative effect of increased height from a predominantly four storey to a predominantly five storey building, increased excavation, changed floor levels and unit arrangements, relocation and increase of lifts, altered exterior appearance, reduced deep soil and eastern setback, changed landscaping and tree impacts, increased units and vehicles, changed unit mix, and different amenity impacts produced a building with materially different scale, bulk, form, appearance and impacts. The development was radically transformed and did not retain...

Court Disposition

The appeal was dismissed and the modification application was refused.

Orders

  • ['The appeal is dismissed.' 'The application under s 96(8) of the Environmental Planning and Assessment Act 1979 to modify, under s 96(2), the development consent DA10/200 for a residential flat building at 532 - 534 Mowbray Road and 72 - 74 Gordon Crescent, Lane Cove, is refused.' 'The exhibits, except Exhibit 4,...