Benaughton Calderwood Pty Ltd v Shellharbour City Council [2024] NSWLEC 1271

Benaughton Calderwood Pty Ltd v Shellharbour City Council [2024] NSWLEC 1271

The Court was satisfied that the agreed decision was one it could make in the proper exercise of its functions because no jurisdictional constraints prevented consent: the integrated development general terms of approval were incorporated, the proposal was generally consistent with the Concept Plan Approval, and the applicable statutory and planning instrument requirements had been addressed. Accordingly, s 34(3) of the Land and Environment Court Act 1979 required the proceedings to be disposed of in accordance with the parties' agreed decision.

Jurisdiction
Australia
Judgment Date
22 May 2024
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Concerning a Development Application for Land Subdivision and Associated Development / Final Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; amended application allowed; development consent granted subject to conditions.
Legal Topics
['class 1 Appeal' 'conciliation Conference' 'agreement Between the Parties' 'integrated Development' 'concept Plan Consistency' 'state Environmental Planning Policies' 'biodiversity Assessment' 'contaminated Land Remediation' 'aboriginal Heritage' 'flood Planning']
['planning and Environment Law' 'development Consent' 'land Subdivision'] ['class 1 Appeal' 'conciliation Conference' 'agreement Between the Parties' 'integrated Development' 'concept Plan Consistency' 'state Environmental Planning Policies' 'biodiversity Assessment' 'contaminated Land Remediation' 'aboriginal Heritage' 'flood Planning']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Concerning a Development Application for Land Subdivision and Associated Development / Final Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the Court could grant development consent in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979" 'Whether any jurisdictional constraints prevented the grant of consent' 'Whether the development consent was consistent with required general terms of approval for integrated development' 'Whether the proposed development was generally consistent with the applicable Concept Plan Approval' 'Whether applicable statutory and planning instrument requirements, including SEPP, biodiversity, remediation, flood, Aboriginal heritage, utility infrastructure, notification and referral requirements, were satisfied']

Ratio Decidendi

The Court was satisfied that the agreed decision was one it could make in the proper exercise of its functions because no jurisdictional constraints prevented consent: the integrated development general terms of approval were incorporated, the proposal was generally consistent with the Concept Plan Approval, and the applicable statutory and planning instrument requirements had been addressed. Accordingly, s 34(3) of the Land and Environment Court Act 1979 required the proceedings to be disposed of in accordance with the parties' agreed decision.

Court Disposition

Appeal upheld; amended application allowed; development consent granted subject to conditions.

Orders

  • ["Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is allowed to file the amended application, and the Applicant is to pay the First Respondent's costs thrown away as a result of the amendment, as agreed or assessed." 'The appeal is upheld.' 'Development Application...