Minahan v Byron Shire Council [2024] NSWLEC 1531

Minahan v Byron Shire Council [2024] NSWLEC 1531

The Court was satisfied that the modified consent would continue to permit a dwelling house and pool with access from the public road network and would be substantially the same development as originally approved; that notification was not required under the Byron Shire Council Community Participation Plan October 2019 and relevant consultation with NSW Crown Lands had been considered; and that relevant s 4.15(1) matters and the consent authority's reasons had been considered. The jurisdictional prerequisites were met, so the parties' agreed decision was one the Court could have made, requiring disposition in accordance with that decision under s 34(3) of the Land and Environment Court...

Jurisdiction
Australia
Judgment Date
29 August 2024
Procedural Posture
Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Orders Following S 34 Conciliation Conference Agreement
Outcome
Appeal upheld; Development Consent 10.2019.448.1 modified.
Legal Topics
['modification Application' 'development Consent' 'conciliation Conference' 'agreement Between the Parties' 'jurisdictional Prerequisites']
['environmental Planning and Assessment' 'land and Environment'] ['modification Application' 'development Consent' 'conciliation Conference' 'agreement Between the Parties' 'jurisdictional Prerequisites']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Orders Following S 34 Conciliation Conference Agreement

Legal Issues

  1. 1 ["Whether the parties' agreed decision was a decision the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether the jurisdictional prerequisites for modification of Development Consent 10.2019.448.1 under s 4.55(2) and s 4.55(3) of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the development as modified would be substantially the same development as originally approved.' "Whether notification, consultation, relevant s 4.15(1) matters and the consent authority's reasons for the original consent had been considered."]

Ratio Decidendi

The Court was satisfied that the modified consent would continue to permit a dwelling house and pool with access from the public road network and would be substantially the same development as originally approved; that notification was not required under the Byron Shire Council Community Participation Plan October 2019 and relevant consultation with NSW Crown Lands had been considered; and that relevant s 4.15(1) matters and the consent authority's reasons had been considered. The jurisdictional prerequisites were met, so the parties' agreed decision was one the Court could have made, requiring disposition in accordance with that decision under s 34(3) of the Land and Environment Court...

Court Disposition

Appeal upheld; Development Consent 10.2019.448.1 modified.

Orders

  • ['The appeal is upheld.' 'Development Consent 10.2019.448.1 for a dwelling house and swimming pool at 48 Myocum Ridge Road, Myocum is modified in the terms in Annexure A.' 'Development Consent 10.2019.448.1, as modified by the Court, is Annexure B.']