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Land and Environment Court Refuses Section 96 Application for Mixed Used Development as “not substantially the same development”

Peter Jackson, one of our Partners, was recently successful on behalf of Canterbury-Bankstown Council in arguing that an appeal should be dismissed against Council’s refusal of a section 96 application to modify a development consent for a mixed use development at Hurlstone Park.

The Court found that the development as proposed was not substantially the same as that originally approved, and that therefore there was no power to approve the application under section 96 of the Environmental Planning and Assessment Act 1979.

In particular, the proposal was to:

- increase the number of units from 60 to 73;
- increase the number of parking spaces from 102 to 134;
- increase height in the order of 2.9m;
- increase floor space from 5,367m2 to 6,137m2;
- introduce changes in the appearance of the building; and most critically
- increase the building from 5 storeys to 6 storeys.

The Court held that the original condition of consent which required the building to be reduced from 6 storeys to 5 storeys was an essential element of the Council’s determination of the application, and this, combined with other changes, was so qualitatively and quantitatively different as to not be “substantially the same development” as that which was originally approved.

The Court further held that even if it was wrong on the “substantially the same” test, the application did not deserve approval on the merits.

Link to judgment