North Sydney Council v Michael Standley and Associates Pty Ltd Matter No Ca 40887/97 [1998] NSWSC 163

North Sydney Council v Michael Standley and Associates Pty Ltd Matter No Ca 40887/97 [1998] NSWSC 163 - NSWSC 1998 case summary — Zoe

[84]

The contrary argument seems to treat the existing consent, whether original or modified, as if there were some issue estoppel with respect to those portions which are not directly affected by the modification application. But there is no justification for such a cramped approach, which is capable of producing an unrealistic and potentially unreasonable outcome. A consent authority is not to be equated with an administrative tribunal deciding a dispute inter partes (cf Lambidis v Commissioner of Police (1995) 37 NSWLR 320). In my view the respondent's approach to s102(3A) is cramped because of the textual and contextual reasons offered in the previous paragraph. And it is unrealistic and potentially unreasonable because a particular development may have to be viewed as a whole before its impact upon the amenity of a neighbourhood can possibly be gauged. For example, a modification which introduces greater usage of a high rise development may necessitate additional lift facilities. It would be unrealistic to consider the modification if hamstrung by the existing consent's provision for lifts. A fortiori if Benalup is correctly decided and if it stands for the broader of the two propositions for which it is said to be authority. It is true that the consent authority might choose to reject the proposed modification, but a purposive approach to the power suggests that it should not do so unless and until its full impact is viewed against the backdrop of all relevant s90 factors. The same point can be demonstrated by reference to the potential evils of the "creep factor" argument raised earlier in a different context. The construction of subsection (3A) which I have espoused offers a principled way of addressing the situation presented by successive modifications that gradually increase the height of a building in a way that is substantial when the original approval is compared with the development embodied in the latest modification proposal. In my view the consent authority is permitted, indeed bound, to assess the environmental impact of the cumulative effect of prior modifications when addressing the latest modification application. In doing so, it does not need to first stop and satisfy itself that the s90 factors touch the development to the extent that it is modified.

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North Sydney Council v Michael Standley and Associates Pty Ltd Matter No Ca 40887/97 [1998] NSWSC 163 (12 May 1998)

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