Sundown Landscape Supplies Pty Limited v Penrith City Council [2004] NSWLEC 3

Sundown Landscape Supplies Pty Limited v Penrith City Council [2004] NSWLEC 3

The proposed staged development, even if trading only commences after stage 1, is not substantially the same development as originally approved within the meaning of s 96(2)(a), given the significant qualitative and quantitative differences during the staged interim operation, the adverse impact on neighbours and the public domain due to deferred landscaping, and that the activities post-stage 1 do not align with the planning instruments' requirements as to the nature and character of the use; accordingly, the s 96 application must be refused.

Jurisdiction
Australia
Judgment Date
07 January 2004
Procedural Posture
Appeal Under S96 Environmental Planning and Assessment Act 1979 / Judgment (ex Tempore)
Outcome
Appeal dismissed
Legal Topics
['modification of Development Consent' 'substantially the Same Development' 'impact on Neighbours' 'impact on Public Domain' 'statutory Interpretation' 'staged Development' 'landscape Controls']
['planning and Environment'] ['modification of Development Consent' 'substantially the Same Development' 'impact on Neighbours' 'impact on Public Domain' 'statutory Interpretation' 'staged Development' 'landscape Controls']

Case Brief

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Procedural Posture

Appeal Under S96 Environmental Planning and Assessment Act 1979 / Judgment (ex Tempore)

Legal Issues

  1. 1 ['Is the present application within the scope of s 96(2)(a) of the Act?' 'If not, is an amended application with trading after stage 1 within s 96(2)(a)?' 'Does the relevant stage conform with the relevant controls, particularly the nature of the permitted activity?' 'Does the approved stage pass the general assessment criteria contained in s 79C of the Act?' "Is the staged development proposal 'substantially the same development' as originally consented?"]

Ratio Decidendi

The proposed staged development, even if trading only commences after stage 1, is not substantially the same development as originally approved within the meaning of s 96(2)(a), given the significant qualitative and quantitative differences during the staged interim operation, the adverse impact on neighbours and the public domain due to deferred landscaping, and that the activities post-stage 1 do not align with the planning instruments' requirements as to the nature and character of the use; accordingly, the s 96 application must be refused.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'Application pursuant to s96 of the Environmental Planning and Assessment Act 1979 to modify the conditions of consent to development application No. 63/93 for a proposed retail plant nursery at 2006-2012 The Northern Road, Orchard Hills, (Lot 40 in DP 835672) is refused.' 'The exhibits,...