Penrith Lakes Development Corporation Ltd v Independent Planning Commission [2019] NSWLEC 1002

Penrith Lakes Development Corporation Ltd v Independent Planning Commission [2019] NSWLEC 1002

The modifications sought, principally an increase in permitted VENM fill volumes to achieve approved landform requirements, do not alter the substance of the approved development and are therefore substantially the same development as last approved under the relevant consents. Statutory prerequisites and procedural requirements under the Environmental Planning and Assessment Act 1979 and the Land and Environment Court Act 1979 have been met.

Parties
Applicant: Penrith Lakes Development Corporation Ltd; Respondent: Independent Planning Commission
Jurisdiction
Australia
Judgment Date
08 January 2019
Procedural Posture
Modification Application Appeal (class 1) / Agreed Orders Following Conciliation Conference
Outcome
Appeals upheld; modification applications approved subject to conditions
Legal Topics
Modification of Consent, Importation of Fill Material, Planning Approvals, Public Participation
Environmental Law Planning Law Modification of Consent Importation of Fill Material Planning Approvals Public Participation

Case Brief

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Parties

Penrith Lakes Development Corporation Ltd

Applicant

Independent Planning Commission

Respondent

Procedural Posture

Modification Application Appeal (class 1) / Agreed Orders Following Conciliation Conference

Legal Issues

  1. 1 Whether the proposed modifications constitute "substantially the same development" under s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979
  2. 2 Compliance with procedural requirements for notification and consultation under s 4.55(2)(b)-(c) of the Environmental Planning and Assessment Act 1979
  3. 3 Satisfaction of matters to be considered under s 4.15(1) of the Environmental Planning and Assessment Act 1979

Ratio Decidendi

The modifications sought, principally an increase in permitted VENM fill volumes to achieve approved landform requirements, do not alter the substance of the approved development and are therefore substantially the same development as last approved under the relevant consents. Statutory prerequisites and procedural requirements under the Environmental Planning and Assessment Act 1979 and the Land and Environment Court Act 1979 have been met.

Court Disposition

Appeals upheld; modification applications approved subject to conditions

Orders

  • Matter 2018/310891: Appeal upheld; Modification Application DA 3 MOD 6 approved subject to conditions in Annexure A.
  • Matter 2018/310892: Appeal upheld; Modification Application DA 2 MOD 7 approved subject to conditions in Annexure A.