BPG Holdings (No. 5) Pty Limited v Northern Beaches Council [2022] NSWLEC 1220

BPG Holdings (No. 5) Pty Limited v Northern Beaches Council [2022] NSWLEC 1220

The modification application was approved 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: the modified development was substantially the same as the originally approved seniors living development, the changes were to pedestrian access and ancillary built form aspects, the development remained six dwellings, the increase in floor space was marginal, notification requirements had been met, submissions had been considered, and the relevant planning provisions continued to be satisfied.

Jurisdiction
Australia
Judgment Date
27 April 2022
Procedural Posture
Class 1 Modification Application to Modify a Court Granted Development Consent for Seniors Living / Orders Made Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Application granted; Modification application No. MOD2021/0873 approved.
Legal Topics
['modification of Development Consent' 'seniors Living Housing' 'conciliation Conference' 'court Approval of Agreed Orders' 'environmental Planning Instruments']
['planning and Environment Law'] ['modification of Development Consent' 'seniors Living Housing' 'conciliation Conference' 'court Approval of Agreed Orders' 'environmental Planning Instruments']

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Procedural Posture

Class 1 Modification Application to Modify a Court Granted Development Consent for Seniors Living / Orders Made Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the Court should grant Modification application No. MOD2021/0873 to modify a Court-granted development consent pursuant to s 4.55(8) and s 4.55(2) of the Environmental Planning and Assessment Act 1979.' 'Whether the agreed decision 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 as modified was substantially the same development as the development for which consent was originally granted.' 'Whether notification requirements and consideration of submissions under s 4.55(2)(c) and s 4.55(2)(d) of the Environmental Planning and Assessment Act 1979 were satisfied.']

Ratio Decidendi

The modification application was approved 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: the modified development was substantially the same as the originally approved seniors living development, the changes were to pedestrian access and ancillary built form aspects, the development remained six dwellings, the increase in floor space was marginal, notification requirements had been met, submissions had been considered, and the relevant planning provisions continued to be satisfied.

Court Disposition

Application granted; Modification application No. MOD2021/0873 approved.

Orders

  • ['The application is granted.' 'Pursuant to section 4.55(8) of the Environmental Planning and Assessment Act 1979, Modification application No. MOD2021/0873 for amendments to the footprint and setbacks of units G03 and G04, the roof form of the development and the replacement of the pedestrian refuge island with...