Bannerman Consulting Pty Ltd v Coffs Harbour City Council [2022] NSWLEC 1086

Bannerman Consulting Pty Ltd v Coffs Harbour City Council [2022] NSWLEC 1086

Because the amended development was permissible with consent, the relevant zone objectives and essential services requirements had been considered and satisfied through reports and conditions, access and classified road matters had been addressed, contamination was not an impediment, and conditions could require modification of earlier consents to ensure consistency, the parties' agreed decision was one the Court could have made in the proper exercise of its functions. Section 34(3) therefore required the Court to dispose of the proceedings in accordance with that agreement by upholding the appeal and granting consent subject to conditions.

Jurisdiction
Australia
Judgment Date
18 February 2022
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Principal Judgment Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; Development Application No. 0160/19DA approved subject to conditions in Annexure A.
Legal Topics
['development Application' 'change of Use' 'restaurant and Outdoor Dining' 'conciliation Conference' 'jurisdictional Prerequisites' 'essential Services' 'classified Road Access' 'conditions of Consent']
['planning and Environment Law' 'development Consent'] ['development Application' 'change of Use' 'restaurant and Outdoor Dining' 'conciliation Conference' 'jurisdictional Prerequisites' 'essential Services' 'classified Road Access' 'conditions of Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Principal Judgment Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision 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 the proposed development was permissible with consent in the RU2 Rural Landscape zone under the Coffs Harbour Local Environmental Plan 2013.' 'Whether essential services required by cl 7.11 of the Coffs Harbour Local Environmental Plan 2013 were available or adequate arrangements had been made.' 'Whether vehicular access and classified road matters under the Roads Act 1993 and State Environmental Planning Policy (Infrastructure) 2007 were adequately addressed.' 'Whether contamination considerations under State Environmental Planning Policy No 55—Remediation of Land were satisfied.' 'Whether conditions could require modification of existing development consents to avoid inconsistency.']

Ratio Decidendi

Because the amended development was permissible with consent, the relevant zone objectives and essential services requirements had been considered and satisfied through reports and conditions, access and classified road matters had been addressed, contamination was not an impediment, and conditions could require modification of earlier consents to ensure consistency, the parties' agreed decision was one the Court could have made in the proper exercise of its functions. Section 34(3) therefore required the Court to dispose of the proceedings in accordance with that agreement by upholding the appeal and granting consent subject to conditions.

Court Disposition

Appeal upheld; Development Application No. 0160/19DA approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development Application No. 0160/19DA lodged on 29 August 2018, as amended 30 October 2019, 16 March 2021, 5 August 2021, 15 and 22 December 2021, and 7 February 2022, for a change of use to include increased capacity at a restaurant and the use of outdoor areas for dining (including car...