Ozzy States Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1413

Ozzy States Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1413

The proposed modification was not substantially the same development as the approved three storey residential flat building. Although the additional 85m2 unit and minor height exceedance did not alone make the development materially different, the addition of a fourth storey was a significant quantitative increase in storeys and altered an essential element of the consent. The Court was satisfied that Council's original approval, including its approval of the floor space ratio variation, depended on the development meeting the three storey desired future character of the area. Because the s 96(2)(a) precondition was not met, the Court had no power to approve the modification application.

Jurisdiction
Australia
Judgment Date
08 August 2017
Procedural Posture
Class 1 Appeal Concerning an Application to Modify Development Consent / Appeal From Refusal of Modification Application
Outcome
Appeal dismissed; modification application refused.
Legal Topics
['modification of Development Consent' 'substantially the Same Development' 'residential Flat Building' 'building Height' 'floor Space Ratio' 'desired Future Character']
['environmental Planning and Assessment' 'land Use and Development Control'] ['modification of Development Consent' 'substantially the Same Development' 'residential Flat Building' 'building Height' 'floor Space Ratio' 'desired Future Character']

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Procedural Posture

Class 1 Appeal Concerning an Application to Modify Development Consent / Appeal From Refusal of Modification Application

Legal Issues

  1. 1 ['Whether the proposed modification to add a fourth floor was substantially the same development as the three storey residential flat building for which consent was originally granted under s 96(2) of the Environmental Planning and Assessment Act 1979.' 'Whether the three storey character of the approved development was an essential element of the consent.' 'Whether the Court had power to approve the modification application if the precondition in s 96(2)(a) was not satisfied.']

Ratio Decidendi

The proposed modification was not substantially the same development as the approved three storey residential flat building. Although the additional 85m2 unit and minor height exceedance did not alone make the development materially different, the addition of a fourth storey was a significant quantitative increase in storeys and altered an essential element of the consent. The Court was satisfied that Council's original approval, including its approval of the floor space ratio variation, depended on the development meeting the three storey desired future character of the area. Because the s 96(2)(a) precondition was not met, the Court had no power to approve the modification application.

Court Disposition

Appeal dismissed; modification application refused.

Orders

  • ['The appeal is dismissed.' 'The application (No DA-523/2014/A) to modify development consent DA-523/2014 by the addition of a new fourth floor comprising a single two bedroom unit is refused.' 'The exhibits are returned, except for exhibit A.']