Canterbury-Bankstown Council granted development consent for the construction of a 3 storey residential apartment building. The Council had twice refused to alter that permission to include a fourth storey. In the third modification application, the developer sought permission to build one two bedroom unit at the four–storey level, but designed to appear as a roof.

In Ozzy States Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1413, the judge refused permission for the modification. He found that if the development proposal had not been three storeys, it would not have been approved by the Council. As such, the three story element was essential to the proposal, and the proposed modification was not substantially the same as that for which the consent was originally granted. In coming to this decision, the judge considered the locality, the fact that the addition would exceed height and floor space controls, and resident objections.

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