Design Studio 407 Pty Ltd v Georges River Council [2022] NSWLEC 1351

Design Studio 407 Pty Ltd v Georges River Council [2022] NSWLEC 1351

The Court upheld the appeal and approved the modification application because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 and the Commissioner was satisfied that the agreed decision was one the Court could have made in the proper exercise of its functions: the appeal was brought within time, owner consent was provided, the proposed modification was of minimal environmental impact, the modified development was substantially the same development, notification requirements were met, relevant s 4.15(1) matters were considered, and no jurisdictional impediment was identified.

Jurisdiction
Australia
Judgment Date
07 July 2022
Procedural Posture
Class 1 Appeal Relating to Modification Application Mod2021/0170 / Orders Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Modification Application MOD2021/0170 approved; Development Consent No. DA2018/0230 modified in the terms in Annexure A.
Legal Topics
['modification of Development Consent' 'conciliation Conference' 'section 34 Agreement' 'minimal Environmental Impact' 'substantially the Same Development' 'notification Requirements']
['planning and Environment' 'development Consent Modification'] ['modification of Development Consent' 'conciliation Conference' 'section 34 Agreement' 'minimal Environmental Impact' 'substantially the Same Development' 'notification Requirements']

Case Brief

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Procedural Posture

Class 1 Appeal Relating to Modification Application Mod2021/0170 / Orders Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreement 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 Modification Application MOD2021/0170 satisfied the requirements of s 4.55(1A) of the Environmental Planning and Assessment Act 1979.' 'Whether Development Consent No. DA2018/0230 should be modified in accordance with the agreed amended plans and conditions.']

Ratio Decidendi

The Court upheld the appeal and approved the modification application because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 and the Commissioner was satisfied that the agreed decision was one the Court could have made in the proper exercise of its functions: the appeal was brought within time, owner consent was provided, the proposed modification was of minimal environmental impact, the modified development was substantially the same development, notification requirements were met, relevant s 4.15(1) matters were considered, and no jurisdictional impediment was identified.

Court Disposition

Appeal upheld; Modification Application MOD2021/0170 approved; Development Consent No. DA2018/0230 modified in the terms in Annexure A.

Orders

  • ['The appeal is upheld' 'Modification Application MOD2021/0170 is approved and Development Consent No. DA2018/0230, which approved the extension of a concrete pool deck, the extension of an existing patio and the construction of a series of timber decks in the rear yard of Lot 2 DP 507491, known as 64 Moons Avenue,...