Ambey Property v Cumberland Council [2024] NSWLEC 1545

Ambey Property v Cumberland Council [2024] NSWLEC 1545

Because the Commissioner was satisfied that the jurisdictional preconditions identified by the parties were met and that granting development consent to the amended application subject to conditions was a decision the Court could make in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with the parties' agreed decision.

Jurisdiction
Australia
Judgment Date
05 September 2024
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. Da2023/0123 / Orders Made Following a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development consent granted to amended Development Application No. DA2023/0123 subject to conditions; Applicant to pay Respondent's costs thrown away agreed at $1,200.
Legal Topics
['development Application Appeal' 'centre Based Child Care Facility' 'section 34 Conciliation Agreement' 'grant of Development Consent Subject to Conditions' 'costs Thrown Away for Amended Development Application']
['environmental Planning and Assessment' 'land and Environment Court Proceedings'] ['development Application Appeal' 'centre Based Child Care Facility' 'section 34 Conciliation Agreement' 'grant of Development Consent Subject to Conditions' 'costs Thrown Away for Amended Development Application']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. Da2023/0123 / Orders Made Following a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the agreement reached by the parties 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 jurisdictional preconditions for granting development consent to the amended development application were met.' 'Whether the amended development application could be approved subject to conditions.']

Ratio Decidendi

Because the Commissioner was satisfied that the jurisdictional preconditions identified by the parties were met and that granting development consent to the amended application subject to conditions was a decision the Court could make in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with the parties' agreed decision.

Court Disposition

Appeal upheld; development consent granted to amended Development Application No. DA2023/0123 subject to conditions; Applicant to pay Respondent's costs thrown away agreed at $1,200.

Orders

  • ['The Applicant is granted leave to file the Amended Development Application referred to in paragraph [11] with the Court.' 'The Applicant is to pay the Respondent\'s costs "thrown away" as a result of the Amended Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979,...