DBCF Pty Ltd v Lane Cove Municipal Council [2019] NSWLEC 1305

DBCF Pty Ltd v Lane Cove Municipal Council [2019] NSWLEC 1305

The parties' agreed decision could be made in the proper exercise of the Court's functions because the relevant s 4.55 prerequisite was satisfied: the development to which the consent as modified relates is substantially the same development as originally granted and before that consent as originally granted was modified. 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 the parties' decision.

Jurisdiction
Australia
Judgment Date
02 July 2019
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against the Terms of a Modified Development Consent / Final Orders Following Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979
Outcome
Appeal upheld; the approval to modify Development Consent No. DA217/2016 was amended in accordance with the parties' agreement.
Legal Topics
['modification Application' 'development Consent Conditions' 'conciliation Conference Agreement' 'alterations and Additions']
['planning and Environment Law'] ['modification Application' 'development Consent Conditions' 'conciliation Conference Agreement' 'alterations and Additions']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against the Terms of a Modified Development Consent / Final Orders Following Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979

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 in s 4.55 of the Environmental Planning and Assessment Act 1979 to modify the consent were satisfied.' 'Whether condition 1A of the consent should be deleted and the proposal amended to include a pitched tiled roof with a shallower pitch and lower ridge height.']

Ratio Decidendi

The parties' agreed decision could be made in the proper exercise of the Court's functions because the relevant s 4.55 prerequisite was satisfied: the development to which the consent as modified relates is substantially the same development as originally granted and before that consent as originally granted was modified. 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 the parties' decision.

Court Disposition

Appeal upheld; the approval to modify Development Consent No. DA217/2016 was amended in accordance with the parties' agreement.

Orders

  • ['The Applicant is granted leave to rely on amended plans Drawing Nos 106E, 107E, 108E, 109E, 110F and 111E, each dated 27.06.19 and prepared by DBCF Pty Limited.' 'Each party is to pay their own costs of the proceedings.' 'The appeal is upheld.' 'The Approval dated 8 June 2018 to Modify Development Consent No....