Tasman Property Holdings Pty Ltd v Canterbury-Bankstown Council [2019] NSWLEC 1310

Tasman Property Holdings Pty Ltd v Canterbury-Bankstown Council [2019] NSWLEC 1310

Consent to the modification application could not be granted because the proposed increase in building height and density would result in a development that was not 'substantially the same' as the development approved, particularly in light of the essential role that compliance with the height limit and reduced...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
04 July 2019
Procedural Posture
Modification Appeal (class 1) / Final Judgment
Outcome
The appeal is dismissed; modification application refused.
Legal Topics
['modification Applications' 'development Consent' 'height Breach' 'substantially the Same Development' 'streetscape Character' 'solar Access' 'urban Planning' 'merit Appeals']
['planning and Environment Law'] ['modification Applications' 'development Consent' 'height Breach' 'substantially the Same Development' 'streetscape Character' 'solar Access' 'urban Planning' 'merit Appeals']

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Procedural Posture

Modification Appeal (class 1) / Final Judgment

Legal Issues

  1. 1 ["Whether the proposed modification is 'substantially the same development' as originally approved under s 4.56 of the Environmental Planning and Assessment Act 1979" 'Whether the modification (addition of an extra storey, increased height, density, and GFA) is permissible given prior approval was contingent on compliance with height and density standards' 'The merit of the modification regarding planning controls (height, density, setbacks, streetscape character, solar access)']

Ratio Decidendi

Consent to the modification application could not be granted because the proposed increase in building height and density would result in a development that was not 'substantially the same' as the development approved, particularly in light of the essential role that compliance with the height limit and reduced density played in the original consent (approval would not have been granted without those factors). Given these material differences and the impact on planning controls and the circumstances of original approval, the Court is without power to grant the application under s 4.56 of the EPA Act.

Court Disposition

The appeal is dismissed; modification application refused.

Orders

  • ['The appeal is dismissed.' 'Modification Application No. DA-406/2016/A for a mixed use development at 1552-1560 Canterbury Road, Punchbowl is refused.' 'The exhibits are returned except Exhibits A, D, E and 1.']