Realize Architecture Pty Ltd v Canterbury-Bankstown Council [2023] NSWLEC 1437

Realize Architecture Pty Ltd v Canterbury-Bankstown Council [2023] NSWLEC 1437

The Court was satisfied, on a finely balanced quantitative and qualitative assessment, that the Proposed Modification was substantially the same development as the originally approved mixed-use development. Although there were differences in height, floor space, unit mix, layout and ground plane treatment, the development retained its essential character as a four-building, multi-storey mixed-use development with ground floor commercial uses and residential apartments above. On the merits, the Court found that the proposal warranted approval because it was compatible with the modified desired future character of the area and delivered various design and amenity improvements; the floor...

Jurisdiction
Australia
Judgment Date
09 August 2023
Procedural Posture
Class 1 Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Modification Application No DA 503/2013/b / Principal Judgment After Hearing Determining Whether to Modify Development Consent No DA 503/2013
Outcome
Appeal upheld; Development Consent No DA-503/2013 modified.
Legal Topics
['substantially the Same Development Under S 4.55(2)(a)' 'desired Future Character' 'height of Buildings' 'floor Space Ratio' 'residential Apartment Design and Amenity' 'development Appeal']
['planning and Environment Law' 'development Consent Modification' 'land Use and Development Assessment'] ['substantially the Same Development Under S 4.55(2)(a)' 'desired Future Character' 'height of Buildings' 'floor Space Ratio' 'residential Apartment Design and Amenity' 'development Appeal']

Case Brief

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Procedural Posture

Class 1 Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Modification Application No DA 503/2013/b / Principal Judgment After Hearing Determining Whether to Modify Development Consent No DA 503/2013

Legal Issues

  1. 1 ['Whether the Proposed Modification was substantially the same development as the development for which consent was originally granted and before that consent was modified.' 'Whether the Proposed Modification was consistent with the desired future character, including in relation to building height and floor space ratio.' 'Whether the additional floor space was excessive.' 'Whether the Proposed Modification provided a sub-standard level of amenity because of design quality.']

Ratio Decidendi

The Court was satisfied, on a finely balanced quantitative and qualitative assessment, that the Proposed Modification was substantially the same development as the originally approved mixed-use development. Although there were differences in height, floor space, unit mix, layout and ground plane treatment, the development retained its essential character as a four-building, multi-storey mixed-use development with ground floor commercial uses and residential apartments above. On the merits, the Court found that the proposal warranted approval because it was compatible with the modified desired future character of the area and delivered various design and amenity improvements; the floor...

Court Disposition

Appeal upheld; Development Consent No DA-503/2013 modified.

Orders

  • ['The appeal is upheld.' 'Development Consent No DA-503/2013 is modified in the terms in Annexure A.' 'Development Consent No DA-503/2013 as modified by the Court is Annexure B.' 'All exhibits are retained.']