Cowan Road Developer Pty Ltd v Ku-ring-gai Council [2024] NSWLEC 1211

Cowan Road Developer Pty Ltd v Ku-ring-gai Council [2024] NSWLEC 1211

The Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions because the modification application involved changes to aspects of the built form only, while the development remained a 25-dwelling multi dwelling housing development with basement parking and associated works in the same configuration as the development originally consented to, so the modified development was substantially the same development. The proceedings were therefore disposed of in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
23 April 2024
Procedural Posture
Class 1 Application to Modify a Court Granted Development Consent / Orders Made Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Modification application approved subject to conditions; development consent consolidated as modified.
Legal Topics
['modification of Development Consent' 'multi Dwelling Housing' 'conciliation Conference' 'agreement Between Parties' 'consent Orders']
['planning and Environment Law'] ['modification of Development Consent' 'multi Dwelling Housing' 'conciliation Conference' 'agreement Between Parties' 'consent Orders']

Case Brief

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Procedural Posture

Class 1 Application to Modify a Court Granted Development Consent / Orders Made Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the Court could approve the modification application under s 4.55(2) of the Environmental Planning and Assessment Act 1979 following agreement between the parties.' 'Whether the development as modified would be substantially the same development as the development for which consent was originally granted.' '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.']

Ratio Decidendi

The Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions because the modification application involved changes to aspects of the built form only, while the development remained a 25-dwelling multi dwelling housing development with basement parking and associated works in the same configuration as the development originally consented to, so the modified development was substantially the same development. The proceedings were therefore disposed of in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Modification application approved subject to conditions; development consent consolidated as modified.

Orders

  • ['The Applicant is granted leave to rely on the amended plans and documents listed at paragraph 11 of this judgment.' 'The modification application relating to the development consent to development application DA 0270/22 is approved subject to the conditions at Annexure A.' 'As a consequence of Order (2), the...