Benson McCormack Pty Ltd v Inner West Council [2022] NSWLEC 1377

Benson McCormack Pty Ltd v Inner West Council [2022] NSWLEC 1377

The Court was satisfied that the modified proposal remained substantially the same development as the approved six-storey mixed use development, that the relevant jurisdictional prerequisites under s 4.55 of the Environmental Planning and Assessment Act 1979 had been met, and that the parties' agreed decision to approve the modification subject to conditions was a decision the Court could have made in the proper exercise of its functions. Accordingly, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
18 July 2022
Procedural Posture
Class 1 Development Appeal Pursuant to S 4.55 of the Environmental Planning and Assessment Act 1979 / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Parties Reached Agreement and the Court Made Orders
Outcome
Appeal upheld; Development Consent No. DA201700349 modified.
Legal Topics
['modification of Development Consent' 'class 1 Development Appeal' 'conciliation Conference' 'substantially the Same Development' 'jurisdictional Prerequisites for Modification' 'agreed Orders']
['planning and Environment Law' 'development Consent Modification'] ['modification of Development Consent' 'class 1 Development Appeal' 'conciliation Conference' 'substantially the Same Development' 'jurisdictional Prerequisites for Modification' 'agreed Orders']

Case Brief

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Procedural Posture

Class 1 Development Appeal Pursuant to S 4.55 of the Environmental Planning and Assessment Act 1979 / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Parties Reached Agreement and the Court Made Orders

Legal Issues

  1. 1 ['Whether Development Consent No. DA201700349 granted by the Court could be modified under s 4.55 of the Environmental Planning and Assessment Act 1979.' 'Whether the development as modified would be substantially the same development as the development for which consent was originally granted.' 'Whether the jurisdictional preconditions in s 4.55(2) of the Environmental Planning and Assessment Act 1979 were satisfied, including owner consent, notification, consideration of submissions and any concurrence requirements.' "Whether the parties' agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979."]

Ratio Decidendi

The Court was satisfied that the modified proposal remained substantially the same development as the approved six-storey mixed use development, that the relevant jurisdictional prerequisites under s 4.55 of the Environmental Planning and Assessment Act 1979 had been met, and that the parties' agreed decision to approve the modification subject to conditions was a decision the Court could have made in the proper exercise of its functions. Accordingly, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement.

Court Disposition

Appeal upheld; Development Consent No. DA201700349 modified.

Orders

  • ['The appeal is upheld.' 'Development Consent No. DA201700349 is modified in the terms in Annexure A.' 'Development Consent No. DA201700349 as modified by the Court is Annexure B.']