Sahade v Inner West Council [2023] NSWLEC 1139

Sahade v Inner West Council [2023] NSWLEC 1139

Having considered expert evidence and conducted a qualitative and quantitative comparison, the Court was not satisfied that the Proposed Modification was substantially the same as the development for which consent was originally granted (and before that consent as modified), as required under s 4.55(2)(a) of the EPA Act. The substantial differences in design, intensity, and operation meant the jurisdictional prerequisite was not met, precluding any merits assessment or approval of the modification.

Jurisdiction
Australia
Judgment Date
29 March 2023
Procedural Posture
Development Appeal (modification) / Final Judgment
Outcome
Appeal dismissed; modification application refused.
Legal Topics
['modification of Development Consent' 'jurisdictional Prerequisites' 'heritage' 'streetscape' 'acoustic Impact']
['planning and Environment'] ['modification of Development Consent' 'jurisdictional Prerequisites' 'heritage' 'streetscape' 'acoustic Impact']

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Procedural Posture

Development Appeal (modification) / Final Judgment

Legal Issues

  1. 1 ['Whether the Proposed Modification is substantially the same as the development for which consent was originally granted within the meaning of s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979' 'Whether the Court has jurisdiction to approve the Proposed Modification']

Ratio Decidendi

Having considered expert evidence and conducted a qualitative and quantitative comparison, the Court was not satisfied that the Proposed Modification was substantially the same as the development for which consent was originally granted (and before that consent as modified), as required under s 4.55(2)(a) of the EPA Act. The substantial differences in design, intensity, and operation meant the jurisdictional prerequisite was not met, precluding any merits assessment or approval of the modification.

Court Disposition

Appeal dismissed; modification application refused.

Orders

  • ['The appeal is dismissed.' 'Modification Application No. MOD/2022/0008 seeking to modify Development Consent No. 10.2017.170.3 which was granted by the Respondent on 1 March 2019 at 95 Ramsay Street, Haberfield is not approved.' 'Exhibit 2 is returned and all other exhibits are retained.']