Skyton Developments No. 2 Pty Ltd v Georges River Council [2023] NSWLEC 1698

Skyton Developments No. 2 Pty Ltd v Georges River Council [2023] NSWLEC 1698

The Court found the proposed modification is 'substantially the same' as the original consent, as it does not constitute a radical transformation and retains the essential features, use, and impacts of the originally approved development. The additional building height was supported by evidence as being incrementally increased at a location that minimises adverse impacts. Overshadowing, privacy, and view loss impacts are minor or offset by design improvements. GFA calculations should exclude the breezeways, per HPG Mosman, and amended materials and finishes are appropriate. Certain contested conditions (GFA, materials, power lines) should be resolved as set out in the judgment.

Jurisdiction
Australia
Judgment Date
21 November 2023
Procedural Posture
Development Appeal (modification) / Final Judgment and Orders Following Hearing
Outcome
Appeal upheld; modification approved subject to finalised conditions of consent to be filed by parties.
Legal Topics
['modification of Development Consent' 'height of Buildings' 'urban Design' 'jurisdictional Prerequisite—substantially the Same Development' 'gross Floor Area (gfa) Calculation' 'environmental Impacts' 'solar Access' 'bulk and Scale' 'design Quality' 'public Interest']
['planning and Environment Law'] ['modification of Development Consent' 'height of Buildings' 'urban Design' 'jurisdictional Prerequisite—substantially the Same Development' 'gross Floor Area (gfa) Calculation' 'environmental Impacts' 'solar Access' 'bulk and Scale' 'design Quality' 'public Interest']

Case Brief

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Procedural Posture

Development Appeal (modification) / Final Judgment and Orders Following Hearing

Legal Issues

  1. 1 ["Whether the proposed modification is 'substantially the same' as the original consent under s 4.56(1)(a) EPA Act" 'Whether the modification should be approved on its merits, considering height, bulk, scale, design, solar access, and environmental impacts' 'How to calculate gross floor area (GFA) and floor space ratio (FSR) for the purposes of the modified consent, particularly the treatment of breezeways']

Ratio Decidendi

The Court found the proposed modification is 'substantially the same' as the original consent, as it does not constitute a radical transformation and retains the essential features, use, and impacts of the originally approved development. The additional building height was supported by evidence as being incrementally increased at a location that minimises adverse impacts. Overshadowing, privacy, and view loss impacts are minor or offset by design improvements. GFA calculations should exclude the breezeways, per HPG Mosman, and amended materials and finishes are appropriate. Certain contested conditions (GFA, materials, power lines) should be resolved as set out in the judgment.

Court Disposition

Appeal upheld; modification approved subject to finalised conditions of consent to be filed by parties.

Orders

  • ["By 8 December 2023, the parties are to file conditions of consent reflecting the Court's findings using the prescribed templates." 'The matter is listed for Online Court at 12pm, 8 December 2023.']