Spencer v Inner West Council [2024] NSWLEC 1244

Spencer v Inner West Council [2024] NSWLEC 1244

The Court upheld the appeal and modified the development consent because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979, the Commissioner was satisfied the agreed decision was one the Court could make in the proper exercise of its functions, and the modified development was substantially the same development as originally approved, with quantitatively few changes confined to balcony size and shape and solar panels and no change to any essential or material element of the development.

Jurisdiction
Australia
Judgment Date
10 May 2024
Procedural Posture
Class 1 Appeal Concerning a Modification Application to Development Consent Da/2023/0363 / Orders Made Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development consent DA/2023/0363 modified in accordance with the agreed terms.
Legal Topics
['modification Application' 'development Consent' 'conciliation Conference' 'attached Dwelling Alterations and Additions' 'substantially the Same Development']
['planning and Environment Law'] ['modification Application' 'development Consent' 'conciliation Conference' 'attached Dwelling Alterations and Additions' 'substantially the Same Development']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning a Modification Application to Development Consent Da/2023/0363 / Orders Made Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the Court could determine the modification application pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 on appeal.' 'Whether the agreement reached at the conciliation conference was a decision the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.' 'Whether the development as modified was substantially the same development as that originally approved.']

Ratio Decidendi

The Court upheld the appeal and modified the development consent because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979, the Commissioner was satisfied the agreed decision was one the Court could make in the proper exercise of its functions, and the modified development was substantially the same development as originally approved, with quantitatively few changes confined to balcony size and shape and solar panels and no change to any essential or material element of the development.

Court Disposition

Appeal upheld; development consent DA/2023/0363 modified in accordance with the agreed terms.

Orders

  • ['The appeal is upheld.' 'Pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979, development consent DA/2023/0363 for alterations and additions to an existing attached dwelling at 51 Glassop Street, Balmain, is modified in the terms in Annexure A.' 'The terms of the consolidated Development...