Chidiac Holdings Pty Ltd v Canterbury-Bankstown Council [2023] NSWLEC 1636

Chidiac Holdings Pty Ltd v Canterbury-Bankstown Council [2023] NSWLEC 1636

Because the agreed modification produced a development substantially the same in form, scale and environmental impact as the originally approved shop top housing development, the relevant notification, owner consent, design, BASIX and planning considerations were satisfied, and the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) required the Court to dispose of the proceedings in accordance with the parties' decision.

Jurisdiction
Australia
Judgment Date
27 October 2023
Procedural Posture
Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Following Deemed Refusal of Modification Application No DA 422/2018/b / Orders Following Mandatory Conciliation Conference Under S 34 of the Land Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; Development Consent DA-422/2018 modified in the terms in Annexure A; Development Consent DA-422/2018 as modified by the Court is Annexure B.
Legal Topics
['modification Application' 'shop Top Housing Development' 'substantially the Same Development' 'conciliation Conference' 'agreement Between Parties' 'development Consent']
['planning and Environment Law'] ['modification Application' 'shop Top Housing Development' 'substantially the Same Development' 'conciliation Conference' 'agreement Between Parties' 'development Consent']

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Procedural Posture

Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Following Deemed Refusal of Modification Application No DA 422/2018/b / Orders Following Mandatory Conciliation Conference Under S 34 of the Land Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["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 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.' 'Whether relevant pre-jurisdictional requirements and relevant matters under ss 4.55 and 4.15 of the Environmental Planning and Assessment Act 1979 and applicable environmental planning instruments were satisfied.']

Ratio Decidendi

Because the agreed modification produced a development substantially the same in form, scale and environmental impact as the originally approved shop top housing development, the relevant notification, owner consent, design, BASIX and planning considerations were satisfied, and the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) required the Court to dispose of the proceedings in accordance with the parties' decision.

Court Disposition

Appeal upheld; Development Consent DA-422/2018 modified in the terms in Annexure A; Development Consent DA-422/2018 as modified by the Court is Annexure B.

Orders

  • ['The appeal is upheld.' 'Development Consent DA-422/2018 is modified in the terms in Annexure A.' 'Development Consent DA-422/2018 as modified by the Court is Annexure B.']