Peden v Lake Macquarie City Council [2024] NSWLEC 87

Peden v Lake Macquarie City Council [2024] NSWLEC 87

The modification consent was invalid because the modified development was not substantially the same as the original development for which consent was granted, contrary to s 4.55 of the EPAA; consequently, the Council could not lawfully approve the modification application.

Parties
Applicant: Ryan Peden; First Respondent: Lake Macquarie City Council; Second Respondent: Ian Paver; Third Respondent: Prudence Paver
Jurisdiction
Australia
Judgment Date
20 August 2024
Procedural Posture
Judicial Review (class 4) / Final Judgment
Outcome
Application allowed; modification consent declared invalid; injunction and costs orders made.
Legal Topics
Modification of Development Consent, Substantially the Same Development Test, Statutory Interpretation, Costs Orders on Submitting Appearance
Planning and Environment Law Administrative Law Modification of Development Consent Substantially the Same Development Test Statutory Interpretation Costs Orders on Submitting Appearance

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Parties

Ryan Peden

Applicant

Lake Macquarie City Council

First Respondent

Ian Paver

Second Respondent

Prudence Paver

Third Respondent

Procedural Posture

Judicial Review (class 4) / Final Judgment

Legal Issues

  1. 1 Whether the development as modified is substantially the same as the development originally approved under s 4.55 of the EPAA
  2. 2 Whether the modification complied with relevant statutory local planning instruments
  3. 3 Entitlement to costs where parties file submitting appearances

Ratio Decidendi

The modification consent was invalid because the modified development was not substantially the same as the original development for which consent was granted, contrary to s 4.55 of the EPAA; consequently, the Council could not lawfully approve the modification application.

Court Disposition

Application allowed; modification consent declared invalid; injunction and costs orders made.

Orders

  • s 4.55 modification consent DA/1682/2020/A declared invalid
  • Second and third respondents restrained from acting on the modification consent