D-Studio Architects Pty Ltd v Waverley Council [2023] NSWLEC 1278

D-Studio Architects Pty Ltd v Waverley Council [2023] NSWLEC 1278

Because the parties reached agreement, the amended modification application had owner consent, remained substantially the same as the parent consent, had been notified with no submissions received, satisfied the relevant environmental planning instruments and raised no unacceptable environmental impacts, 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.

Jurisdiction
Australia
Judgment Date
05 June 2023
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Concerning a Modification Application / Orders Made After S 34 Conciliation Conference and Final Agreement Filed
Outcome
Appeal upheld; Development Consent DA-325/2021/A modified in accordance with the agreed terms.
Legal Topics
['modification Application' 'residential Apartment Development' 'conciliation Agreement' 'jurisdictional Prerequisites' 'height of Buildings Development Standard']
['environmental Planning and Assessment' 'land and Environment' 'development Consent Modification'] ['modification Application' 'residential Apartment Development' 'conciliation Agreement' 'jurisdictional Prerequisites' 'height of Buildings Development Standard']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Concerning a Modification Application / Orders Made After S 34 Conciliation Conference and Final Agreement Filed

Legal Issues

  1. 1 ["Whether the Court should dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the amended modification application could be approved under s 4.55(8) of the Environmental Planning and Assessment Act 1979.' 'Whether the amended modification application remained substantially the same as the parent development consent.' 'Whether relevant environmental planning instruments and notification requirements were satisfied.']

Ratio Decidendi

Because the parties reached agreement, the amended modification application had owner consent, remained substantially the same as the parent consent, had been notified with no submissions received, satisfied the relevant environmental planning instruments and raised no unacceptable environmental impacts, 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.

Court Disposition

Appeal upheld; Development Consent DA-325/2021/A modified in accordance with the agreed terms.

Orders

  • ['Leave is granted to the Applicant to amend DA-325/2021/A and rely on the amended plans and documents listed at condition 1 of Annexure A.' 'The appeal is upheld.' 'Development Consent DA-325/2021/A is modified in the terms set out at Annexure A.' 'Development Consent DA-325/2021/A as modified by the Court is set...