McCrae v North Sydney Council [2020] NSWLEC 1667

McCrae v North Sydney Council [2020] NSWLEC 1667

Because the Commissioner was satisfied that all jurisdictional prerequisites had been met, including owner consent, substantial sameness, notification, relevant s 4.15 considerations, heritage, BASIX, remediation and Sydney Harbour Catchment matters, the parties' agreed decision was one the Court could have made in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
22 December 2020
Procedural Posture
Class 1 Appeal Concerning a Modification Application Under S 8.9 of the Environmental Planning and Assessment Act 1979 in Relation to the Deemed Refusal of Modification Application No. 237/19/2 / Orders Following Agreement Between the Parties Reached Under S 34(3) of the Land and Environment Court Act 1979 Before a Conciliation Conference Listing
Outcome
Appeal upheld; leave granted to amend the modification application; Development Consent No. DA237/19 modified pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 and made subject to consolidated modified conditions.
Legal Topics
['modification Application' 'deemed Refusal' 'conciliation Conference' 'agreement Between Parties' 'jurisdictional Prerequisites' 'heritage Conservation Area' 'basix' 'remediation of Land' 'sydney Harbour Catchment']
['planning and Environment' 'development Consent Modification' 'land and Environment Court Procedure'] ['modification Application' 'deemed Refusal' 'conciliation Conference' 'agreement Between Parties' 'jurisdictional Prerequisites' 'heritage Conservation Area' 'basix' 'remediation of Land' 'sydney Harbour Catchment']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning a Modification Application Under S 8.9 of the Environmental Planning and Assessment Act 1979 in Relation to the Deemed Refusal of Modification Application No. 237/19/2 / Orders Following Agreement Between the Parties Reached Under S 34(3) of the Land and Environment Court Act 1979 Before a Conciliation Conference Listing

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 the development consent under s 4.55(2) of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the modified development was substantially the same development for which consent was originally granted.' 'Whether relevant environmental planning instruments and notification requirements were satisfied.']

Ratio Decidendi

Because the Commissioner was satisfied that all jurisdictional prerequisites had been met, including owner consent, substantial sameness, notification, relevant s 4.15 considerations, heritage, BASIX, remediation and Sydney Harbour Catchment matters, the parties' agreed decision was one the Court could have made in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Court Disposition

Appeal upheld; leave granted to amend the modification application; Development Consent No. DA237/19 modified pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 and made subject to consolidated modified conditions.

Orders

  • ['The Applicant is granted leave to amend the modification application by substituting the plans and documentation annexed and marked "A" as the plans and documentation relied upon for the purpose of the modification application.' 'The appeal is upheld.' 'Development No DA237/19, originally granted by the Respondent...