Toplace Pty Ltd v City of Parramatta Council [2017] NSWLEC 1594

Toplace Pty Ltd v City of Parramatta Council [2017] NSWLEC 1594

The modification to the development consent, including the construction of untanked additional basement levels requiring permanent dewatering, was not 'substantially the same development' as originally approved because the critical tanking feature had been removed, significantly increasing groundwater ingress and altering environmental impacts. The applicant failed to discharge the onus to prove the development was substantially the same, and insufficient information on compliance with Building Code of Australia and consent conditions supported upholding Council's order to cease building work.

Jurisdiction
Australia
Judgment Date
24 October 2017
Procedural Posture
Appeal (class 1, Land and Environment Court) / Judgment After Final Hearing
Outcome
Appeals dismissed. Modification application refused. Order to cease work upheld.
Legal Topics
['modification of Development Consent' 'building Code of Australia Compliance' 'permanent Dewatering and Aquifer Interference' "assessment of 'substantially the Same Development'" 'compliance With Consent Conditions' 'enforcement Orders (cease Building Work)']
['planning and Environment Law'] ['modification of Development Consent' 'building Code of Australia Compliance' 'permanent Dewatering and Aquifer Interference' "assessment of 'substantially the Same Development'" 'compliance With Consent Conditions' 'enforcement Orders (cease Building Work)']

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Procedural Posture

Appeal (class 1, Land and Environment Court) / Judgment After Final Hearing

Legal Issues

  1. 1 ["Whether the proposed modified development is 'substantially the same development' as originally approved under s96(2)(a) Environmental Planning and Assessment Act 1979" 'Whether permanent dewatering and construction of additional basement levels were authorised or materially changed the development' 'Whether compliance with Building Code of Australia and planning controls was met' 'Whether stoppage order (Order 19(a) s121B EP&A Act 1979) was justified for unauthorised works']

Ratio Decidendi

The modification to the development consent, including the construction of untanked additional basement levels requiring permanent dewatering, was not 'substantially the same development' as originally approved because the critical tanking feature had been removed, significantly increasing groundwater ingress and altering environmental impacts. The applicant failed to discharge the onus to prove the development was substantially the same, and insufficient information on compliance with Building Code of Australia and consent conditions supported upholding Council's order to cease building work.

Court Disposition

Appeals dismissed. Modification application refused. Order to cease work upheld.

Orders

  • ['Leave granted to rely on amended plans and amended modification application.' 'Appeal for Modification Application under DA/852/2013/A dismissed.' 'Modification Application, under DA/852/2013/A for Lot 1 DP 1214839, refused.' 'Exhibits returned except Exhibits 1 and K (matter 16/164375).' 'Leave granted to rely on...