Beaini Corp Pty Limited v Georges River Council [2023] NSWLEC 1318

Beaini Corp Pty Limited v Georges River Council [2023] NSWLEC 1318

Because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 and the Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions, including because the consent as modified related to substantially the same development as originally approved, the proceedings were disposed of in accordance with the agreement and the appeal was upheld.

Jurisdiction
Australia
Judgment Date
21 June 2023
Procedural Posture
Class 1 Appeal Concerning a Modification Application for a Development Consent / Orders Made Following Agreement Reached at a Conciliation Conference Under S 34(3) of the Land and Environment Court Act 1979
Outcome
The appeal is upheld and Development Consent DA2021/0227 is modified.
Legal Topics
['development Consent Modification' 'detached Dual Occupancy' 'conciliation Conference' 'agreement Between Parties' 'substantially the Same Development']
['planning and Environment Law'] ['development Consent Modification' 'detached Dual Occupancy' 'conciliation Conference' 'agreement Between Parties' 'substantially the Same Development']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning a Modification Application for a Development Consent / Orders Made Following Agreement Reached at a Conciliation Conference Under S 34(3) 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 in exercising the functions of the consent authority on the appeal.' 'Whether the decision agreed by the parties was one 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 to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.']

Ratio Decidendi

Because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 and the Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions, including because the consent as modified related to substantially the same development as originally approved, the proceedings were disposed of in accordance with the agreement and the appeal was upheld.

Court Disposition

The appeal is upheld and Development Consent DA2021/0227 is modified.

Orders

  • ['The appeal is upheld.' 'Development Consent DA2021/0227 for demolition of existing structures and construction of a detached dual occupancy at 37 Inverness Avenue, Penshurst is modified in the terms set out in Annexure "A".' 'Development consent DA2021/0227 as modified by the Court is at Annexure "B".']