Beamstone Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1493

Beamstone Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1493

The agreed modification involved only a boundary change between proposed lots, did not change the number of approved lots, did not seek an additional building envelope, left all but two lots and required subdivision instruments unaffected, and did not alter the nature of the approved subdivision. The modified development was therefore substantially the same as the originally approved development under s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979, and cl 4.1 of Sutherland Shire Local Environmental Plan 2015 did not prohibit the modification. The parties' agreed decision was one the Court could have made in the proper exercise of its functions, so s 34(3) of the Land...

Jurisdiction
Australia
Judgment Date
15 October 2020
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Orders Following Conciliation Conference and Agreement Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; modification application approved subject to conditions in Annexure A.
Legal Topics
['modification Application' 'subdivision Reconfiguration' 'substantially the Same Development' 'conciliation Conference Agreement' 'minimum Lot Size Controls']
['planning and Environment' 'development Consent Modification' 'land Subdivision'] ['modification Application' 'subdivision Reconfiguration' 'substantially the Same Development' 'conciliation Conference Agreement' 'minimum Lot Size Controls']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Orders Following Conciliation Conference and Agreement Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could approve the parties' agreed modification of Development Consent DA 08/0352 under s 4.55 of the Environmental Planning and Assessment Act 1979." 'Whether the modified development was substantially the same development as the originally approved development for the purposes of s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether cl 4.1 of Sutherland Shire Local Environmental Plan 2015 prohibited approval of the modification application.' "Whether, under s 34(3) of the Land and Environment Court Act 1979, the Court was required to dispose of the proceedings in accordance with the parties' agreement."]

Ratio Decidendi

The agreed modification involved only a boundary change between proposed lots, did not change the number of approved lots, did not seek an additional building envelope, left all but two lots and required subdivision instruments unaffected, and did not alter the nature of the approved subdivision. The modified development was therefore substantially the same as the originally approved development under s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979, and cl 4.1 of Sutherland Shire Local Environmental Plan 2015 did not prohibit the modification. The parties' agreed decision was one the Court could have made in the proper exercise of its functions, so s 34(3) of the Land...

Court Disposition

Appeal upheld; modification application approved subject to conditions in Annexure A.

Orders

  • ['The Applicant is granted leave to amend the modification application and rely on the Plan of subdivision of Lots 10 and 11 DP 1202660 as received by the Council on 30 September 2020, the Bushfire Fuel Management Plan (Lot 100) prepared by Travers Bushfire and Ecology dated 18 September 2020, and the Vegetation...