Dracena Group Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1636

Dracena Group Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1636

The Court upheld the appeal 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 approval was a decision the Court could have made in the proper exercise of its functions: the amended works related only to front fences and did not materially change the approved development, the statutory notification requirements had been met, and no relevant planning instrument or other jurisdictional matter prevented approval.

Jurisdiction
Australia
Judgment Date
01 November 2021
Procedural Posture
Class 1 Appeal From Refusal of a Modification Application / Orders Following Conciliation Conference and Agreement Between the Parties Under S 34(3) of the Land and Environment Court Act 1979
Outcome
The appeal is upheld and Modification Application No. 8.2016.217.4 is approved.
Legal Topics
['modification Application' 'residential Development' 'front Boundary Fences' 'development Consent' 'conciliation Conference' 'agreement Between Parties' 'substantially the Same Development' 'notification Requirements']
['planning and Environment Law'] ['modification Application' 'residential Development' 'front Boundary Fences' 'development Consent' 'conciliation Conference' 'agreement Between Parties' 'substantially the Same Development' 'notification Requirements']

Case Brief

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Procedural Posture

Class 1 Appeal From Refusal of a Modification Application / Orders Following Conciliation Conference and Agreement Between the Parties Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the Court could approve Modification Application No. 8.2016.217.4 under s 4.55(2) of the Environmental Planning and Assessment Act 1979.' 'Whether the consent as modified would be substantially the same development as the development for which consent was originally granted.' 'Whether notification requirements for the modification application were met.' 'Whether any applicable planning instruments imposed jurisdictional impediments to approval.']

Ratio Decidendi

The Court upheld the appeal 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 approval was a decision the Court could have made in the proper exercise of its functions: the amended works related only to front fences and did not materially change the approved development, the statutory notification requirements had been met, and no relevant planning instrument or other jurisdictional matter prevented approval.

Court Disposition

The appeal is upheld and Modification Application No. 8.2016.217.4 is approved.

Orders

  • ['The appeal is upheld.' 'Modification Application No.8.2016.217.4 is approved and Development Consent No.8.2016.217.1 is modified in the terms set out in Annexure A.' 'As a consequence of order (2) above, Development Consent No.8.2016.217.1 is now subject to the consolidated modified conditions of development...