Cade v The Council of the City of Sydney [2021] NSWLEC 1606

Cade v The Council of the City of Sydney [2021] NSWLEC 1606

The agreed modification was within the Court's power because the amended proposal was substantially the same development as originally approved, was permissible with consent in the R1 General Residential zone, did not detrimentally impact the heritage significance of the item, and was consistent with the design excellence objective. Accordingly, under s 34(3) of the Land and Environment Court Act 1979, the proceedings were disposed of in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
14 October 2021
Procedural Posture
Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Conditions of Consent Imposed on an Approved Modification of Development Consent / Decision Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; development consent modified in accordance with the agreed conditions of consent and architectural plans.
Legal Topics
['modification Application' 'alterations and Additions to Terrace House' 'state Heritage Item' 'conditions of Consent' 'integrated Development' 'conciliation Conference Agreement']
['planning and Environment' 'heritage' 'development Consent Modification'] ['modification Application' 'alterations and Additions to Terrace House' 'state Heritage Item' 'conditions of Consent' 'integrated Development' 'conciliation Conference Agreement']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Conditions of Consent Imposed on an Approved Modification of Development Consent / Decision Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ['Whether the agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.' 'Whether the proposal to convert an existing window into a door and insert a skylight was substantially the same development as originally approved under s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether the proposal would detrimentally impact the heritage significance of the item under cl 5.10 of Sydney Local Environmental Plan 2012.' 'Whether the proposal was consistent with the design excellence clause in cl 6.21 of Sydney Local Environmental Plan 2012.']

Ratio Decidendi

The agreed modification was within the Court's power because the amended proposal was substantially the same development as originally approved, was permissible with consent in the R1 General Residential zone, did not detrimentally impact the heritage significance of the item, and was consistent with the design excellence objective. Accordingly, under s 34(3) of the Land and Environment Court Act 1979, the proceedings were disposed of in accordance with the parties' agreement.

Court Disposition

Appeal upheld; development consent modified in accordance with the agreed conditions of consent and architectural plans.

Orders

  • ['The Court notes that the Council of the City of Sydney as the relevant consent authority and the Heritage Council, as relevant approval body, have agreed, under cl 121B(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the application to modify Development Consent No....