AV Jennings SPV No. 19 Pty Ltd v Georges River Council [2020] NSWLEC 1283

AV Jennings SPV No. 19 Pty Ltd v Georges River Council [2020] NSWLEC 1283

Because the parties reached an agreement to uphold the appeal and approve the modification, and the Court was satisfied that the amended plans and conditions met the relevant statutory and planning controls, that the proposal was substantially the same as the approved development, and that there were no jurisdictional impediments, the parties' decision was one the Court could have made in the proper exercise of its functions and the proceedings had 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
01 July 2020
Procedural Posture
Class 1 Appeal Against a Deemed Refusal of a Modification Application for an Existing Development Consent / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Agreement Filed and Final Orders Made
Outcome
Appeal upheld; modification application approved; development consent No. DA9/2017/112/1 modified and made subject to consolidated modified conditions.
Legal Topics
['modification Application' 'class 1 Appeal' 'conciliation Conference' 'residential Flat Building' 'development Consent Conditions' 'sepp 65' 'sepp Basix' 'local Environmental Plan Compliance' 'development Control Plan Compliance']
['planning and Environment Law' 'development Consent Modification'] ['modification Application' 'class 1 Appeal' 'conciliation Conference' 'residential Flat Building' 'development Consent Conditions' 'sepp 65' 'sepp Basix' 'local Environmental Plan Compliance' 'development Control Plan Compliance']

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Procedural Posture

Class 1 Appeal Against a Deemed Refusal of a Modification Application for an Existing Development Consent / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Agreement Filed and Final Orders Made

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the proposed modification to development consent No. DA9/2017/112/1 satisfied ss 4.55(2) and (8) of the Environmental Planning and Assessment Act 1979.' 'Whether the amended plans and conditions satisfied the relevant requirements of SEPP BASIX, SEPP 65, Kogarah Local Environmental Plan 2012 and Kogarah Development Control Plan 2013.' 'Whether the proposed modification was substantially the same as the previously approved and notified development.']

Ratio Decidendi

Because the parties reached an agreement to uphold the appeal and approve the modification, and the Court was satisfied that the amended plans and conditions met the relevant statutory and planning controls, that the proposal was substantially the same as the approved development, and that there were no jurisdictional impediments, the parties' decision was one the Court could have made in the proper exercise of its functions and the proceedings had 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; development consent No. DA9/2017/112/1 modified and made subject to consolidated modified conditions.

Orders

  • ['The Applicant is granted leave to rely on the amended plans and documents referred to in the modified conditions of development consent set out in Annexure A.' "The Applicant is to pay the respondent's costs of $10,000.00 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of...