Lombardi v Bayside Council [2023] NSWLEC 1184

Lombardi v Bayside Council [2023] NSWLEC 1184

Because the amended modification application was agreed between the parties, the modified development was substantially the same as the approved development, notification and submissions requirements were satisfied, relevant planning controls raised no jurisdictional impediment, 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 that agreement by upholding the appeal and modifying the development consent.

Jurisdiction
Australia
Judgment Date
20 April 2023
Procedural Posture
Class 1 Development Appeal Pursuant to S 4.56 of the Environmental Planning and Assessment Act 1979 Against Refusal of Modification Application No. MDA 2022/90 / Orders Made Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Development Consent No. DA2019/250 modified.
Legal Topics
['class 1 Development Appeal' 'modification of Development Consent' 'conciliation Conference Agreement' 'boarding House Development' 'jurisdictional Prerequisites Under S 4.56 of the Environmental Planning and Assessment Act 1979']
['planning and Environment Law' 'development Consent Modification'] ['class 1 Development Appeal' 'modification of Development Consent' 'conciliation Conference Agreement' 'boarding House Development' 'jurisdictional Prerequisites Under S 4.56 of the Environmental Planning and Assessment Act 1979']

Case Brief

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Procedural Posture

Class 1 Development Appeal Pursuant to S 4.56 of the Environmental Planning and Assessment Act 1979 Against Refusal of Modification Application No. MDA 2022/90 / Orders Made Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreed decision was one that 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 Court had power under s 4.56 of the Environmental Planning and Assessment Act 1979 to approve the modification of Development Consent No. DA-2019/250.' 'Whether the development as modified was substantially the same development as that for which consent was originally granted.' 'Whether notification, consideration of submissions, and relevant s 4.15(1) matters were satisfied.' 'Whether State Environmental Planning Policy (Housing) 2021, State Environmental Planning Policy (Affordable Rental Housing) 2009, State Environmental Planning Policy (Resilience and Hazards) 2021, State Environmental Planning Policy (Transport and Infrastructure) 2021, and Bayside Local Environmental Plan 2021 created any jurisdictional impediment to approval.']

Ratio Decidendi

Because the amended modification application was agreed between the parties, the modified development was substantially the same as the approved development, notification and submissions requirements were satisfied, relevant planning controls raised no jurisdictional impediment, 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 that agreement by upholding the appeal and modifying the development consent.

Court Disposition

Appeal upheld; Development Consent No. DA2019/250 modified.

Orders

  • ['The appeal is upheld.' 'Development consent no. DA2019/250 is modified in the terms in Annexure A.' 'Development consent no. DA2019/250 as modified by the Court is Annexure B.']