Marks v Willoughby City Council [2019] NSWLEC 1367

Marks v Willoughby City Council [2019] NSWLEC 1367

The Commissioner was satisfied that the modified development was substantially the same as the originally approved development, that proper notification and consultation had occurred, that submissions had been considered, and that the relevant s 4.15(1) matters and reasons for the original consent had been taken into account. The parties' agreed decision was therefore one the Court could have made in the proper exercise of its functions, requiring the proceedings to be disposed of in accordance with that decision under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
06 August 2019
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application Made Pursuant to S 4.55(2) of the Environmental Planning and Assessment Act 1979 / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; modification application approved subject to conditions of consent.
Legal Topics
['modification Application' 'conciliation Conference' 'agreement Between the Parties' 'conditions of Consent']
['planning and Environment' 'development Consent Modification'] ['modification Application' 'conciliation Conference' 'agreement Between the Parties' 'conditions of Consent']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application Made Pursuant to S 4.55(2) of the Environmental Planning and Assessment Act 1979 / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreed decision to uphold the appeal and grant consent to the modification application was a decision 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 jurisdictional pre-requisites for approval of the modification application under s 4.55(2) of the Environmental Planning and Assessment Act 1979 were satisfied.']

Ratio Decidendi

The Commissioner was satisfied that the modified development was substantially the same as the originally approved development, that proper notification and consultation had occurred, that submissions had been considered, and that the relevant s 4.15(1) matters and reasons for the original consent had been taken into account. The parties' agreed decision was therefore one the Court could have made in the proper exercise of its functions, requiring the proceedings to be disposed of in accordance with that decision under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Appeal upheld; modification application approved subject to conditions of consent.

Orders

  • ['Leave is granted to amend the appeal from a deemed refusal appeal to an appeal against the imposition of conditions as set out in the amended Class 1 Application at Annexure "A".' 'Leave is granted to rely on the amended architectural plans set out at Condition A1 in Annexure "B".' 'The appeal is upheld.'...