117 O’Sullivan Pty Ltd (ACN 642 192 185) v Woollahra Municipal Council [2022] NSWLEC 1583

117 O’Sullivan Pty Ltd (ACN 642 192 185) v Woollahra Municipal Council [2022] NSWLEC 1583

Because the parties agreed to approval, the Court was satisfied that the modification application met the jurisdictional prerequisites, including that the modified development was substantially the same development, notification and submissions had been addressed, relevant planning controls were satisfied, and approval was in the public interest. The agreed decision was therefore one the Court could have made in the proper exercise of its functions, requiring disposal of the proceedings in accordance with that decision under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
25 October 2022
Procedural Posture
Class 1 Appeal Against Refusal of a Modification Application / Final Orders Following S 34 AA Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; Modification Application 416/2020-4 approved; Development Consent No. DA-416/2020 modified.
Legal Topics
['modification Application' 'seniors Housing Development' 'conciliation Conference' 'substantially the Same Development' 'public Interest' 'environmental Planning Instruments']
['planning and Environment Law' 'development Consent' 'land and Environment Court Procedure'] ['modification Application' 'seniors Housing Development' 'conciliation Conference' 'substantially the Same Development' 'public Interest' 'environmental Planning Instruments']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of a Modification Application / Final Orders Following S 34 AA Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ['Whether Modification Application 416/2020/4 should be approved under s 4.56 of the Environmental Planning and Assessment Act 1979.' 'Whether the development as modified is substantially the same development as the development for which consent was originally granted and before modification.' 'Whether notification and consideration of submissions requirements were satisfied.' 'Whether the agreed decision was one that the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.']

Ratio Decidendi

Because the parties agreed to approval, the Court was satisfied that the modification application met the jurisdictional prerequisites, including that the modified development was substantially the same development, notification and submissions had been addressed, relevant planning controls were satisfied, and approval was in the public interest. The agreed decision was therefore one the Court could have made in the proper exercise of its functions, requiring disposal of the proceedings in accordance with that decision under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Appeal upheld; Modification Application 416/2020-4 approved; Development Consent No. DA-416/2020 modified.

Orders

  • ['The appeal is upheld.' 'Modification Application 416/2020-4 is approved and development Consent No. DA-416/2020 is modified in the terms in Annexure A.' 'Development Consent No. DA-416/2020 as modified by the Court is Annexure B.']