Attard v Ku-ring-gai Council [2022] NSWLEC 1482

Attard v Ku-ring-gai Council [2022] NSWLEC 1482

The jurisdictional pre-requisites were satisfied, including that the modified development would be substantially the same as the development originally approved, that no concurrence conditions affected the consent, that notification requirements were met and submissions considered, and that the relevant s 4.15(1) matters and reasons for the original consent were considered. The parties' agreed decision was therefore one the Court could have made in the proper exercise of its functions, requiring disposition in accordance with s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
12 September 2022
Procedural Posture
Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Concerning Deemed Refusal of a Modification Application / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
The appeal was upheld and Modification Application No. MOD0231/21 was approved subject to conditions.
Legal Topics
['modification Application' 'development Consent' 'conciliation Conference' 'agreement Between Parties' 'jurisdictional Pre Requisites']
['planning and Environmental Law' 'land and Environment Court Proceedings'] ['modification Application' 'development Consent' 'conciliation Conference' 'agreement Between Parties' 'jurisdictional Pre Requisites']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Concerning Deemed Refusal of a Modification Application / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreed decision under s 34(3) of the Land and Environment Court Act 1979." 'Whether the jurisdictional pre-requisites for modification of the development consent under s 4.55 of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the development as modified would be substantially the same development as the development for which consent was originally granted.']

Ratio Decidendi

The jurisdictional pre-requisites were satisfied, including that the modified development would be substantially the same as the development originally approved, that no concurrence conditions affected the consent, that notification requirements were met and submissions considered, and that the relevant s 4.15(1) matters and reasons for the original consent were considered. The parties' agreed decision was therefore one the Court could have made in the proper exercise of its functions, requiring disposition in accordance with s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

The appeal was upheld and Modification Application No. MOD0231/21 was approved subject to conditions.

Orders

  • ['The Appeal is upheld.' 'Modification Application No. MOD0231/21, to modify Development Application No. DA417/20 granted by the Respondent on 17 May 2021 relating to land at 28 Young Street, Wahroonga (Lot 101 in DP 1278904) and previously known as 35 Water Street, Wahroonga, is determined by the grant of approval...