Armada Avalon Pty Ltd v Northern Beaches Council [2022] NSWLEC 1573

Armada Avalon Pty Ltd v Northern Beaches Council [2022] NSWLEC 1573

Because the parties reached agreement at the s 34 conciliation conference, the relevant jurisdictional prerequisites were satisfied, the modified proposal remained substantially the same as the originally approved development, notification requirements were met, a BASIX Certificate was provided, and the agreed decision was one the Court could have made in the proper exercise of its functions, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement and approve the Modification Application.

Jurisdiction
Australia
Judgment Date
20 October 2022
Procedural Posture
Class 1 Modification Application to Modify Development Consent No. Da2019/1260 for Seniors Living Development / Final Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; Modification Application approved; Development Consent No. DA2019/1260 modified and made subject to consolidated conditions.
Legal Topics
['modification Application' 'seniors Housing' 'conciliation Conference' 'agreement Between the Parties' 'substantially the Same Development' 'basix']
['environmental and Planning Law' 'development Consent Modification'] ['modification Application' 'seniors Housing' 'conciliation Conference' 'agreement Between the Parties' 'substantially the Same Development' 'basix']

Case Brief

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Procedural Posture

Class 1 Modification Application to Modify Development Consent No. Da2019/1260 for Seniors Living Development / Final Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ['Whether the Court could determine the Modification Application under s 4.55 of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed modified development was substantially the same as the development for which consent was originally granted.' 'Whether notification and other jurisdictional prerequisites were satisfied.' '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.']

Ratio Decidendi

Because the parties reached agreement at the s 34 conciliation conference, the relevant jurisdictional prerequisites were satisfied, the modified proposal remained substantially the same as the originally approved development, notification requirements were met, a BASIX Certificate was provided, and the agreed decision was one the Court could have made in the proper exercise of its functions, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement and approve the Modification Application.

Court Disposition

Appeal upheld; Modification Application approved; Development Consent No. DA2019/1260 modified and made subject to consolidated conditions.

Orders

  • ['The appeal is upheld.' 'The Modification Application seeking to modify Development Consent No. DA2019/1260 is approved and the Development Consent is modified as set out in Annexure "A".' 'The Modification Application to Development Consent No. DA2019/1260, as approved by the Court, is subject to the consolidated...