Scorpian Securities P/L v Hastings Council [2005] NSWLEC 608

Scorpian Securities P/L v Hastings Council [2005] NSWLEC 608

The proposed amendment raising the building by 1.4 m did not make the development substantially different from the original approved development, which already had four habitable floors and a basement car park, and the resulting impacts on neighbours were so insignificant that they could not justify refusal of the application.

Jurisdiction
Australia
Judgment Date
18 October 2005
Procedural Posture
Appeal Under S 96 to Amend Development Consent / Ex Tempore Judgment on Consent Orders
Outcome
Appeal upheld; s 96 modification application granted subject to conditions; each party to pay their own costs.
Legal Topics
['section 96 Modification Application' 'substantially the Same Development' 'development Control Plan Compliance' 'amenity Impacts' 'building Height' 'overshadowing' 'privacy' 'view Impacts']
['environmental Planning and Assessment' 'development Consent Modification' 'land and Environment'] ['section 96 Modification Application' 'substantially the Same Development' 'development Control Plan Compliance' 'amenity Impacts' 'building Height' 'overshadowing' 'privacy' 'view Impacts']

Case Brief

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Procedural Posture

Appeal Under S 96 to Amend Development Consent / Ex Tempore Judgment on Consent Orders

Legal Issues

  1. 1 ['Whether raising the approved apartment building by 1.4 m would result in a development that is substantially the same as the originally approved development.' 'Whether the implications of Development Control Plan 49, including its maximum of three stories, justified refusal of the modification application.' 'Whether the proposed modification would cause amenity impacts on neighbours, including visual impact, privacy impacts, overshadowing or view loss, sufficient to justify refusal.']

Ratio Decidendi

The proposed amendment raising the building by 1.4 m did not make the development substantially different from the original approved development, which already had four habitable floors and a basement car park, and the resulting impacts on neighbours were so insignificant that they could not justify refusal of the application.

Court Disposition

Appeal upheld; s 96 modification application granted subject to conditions; each party to pay their own costs.

Orders

  • ['The appeal is upheld.' 'The s 96 modification application dated 15 February 2005 to modify development consent 2003/0834 is determined by granting of the application subject to the attached conditions marked A.' "Exhibit 1 is returned to the respondent. The remaining tenders are retained on the Court's file."...