Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council [2022] NSWLEC 1559

Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council [2022] NSWLEC 1559

The Court was satisfied that the agreed decision was one it could make in the proper exercise of its functions because the modified development remained substantially the same as the originally approved residential flat building: qualitatively, it retained the essential elements including a roof terrace for the penthouse apartment, and quantitatively, the increase in gross floor area and additional height exceedance were limited. The modification application had been notified, privacy concerns were addressed by screening vegetation and increased setbacks, and the required BASIX certificate and design verification statement accompanied the application. The proceedings were therefore...

Jurisdiction
Australia
Judgment Date
14 October 2022
Procedural Posture
Class 1 Appeal Concerning a Modification Application / Orders Made Following Agreement Reached at Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Modification Application No. MA/22/0105 approved subject to conditions.
Legal Topics
['modification Application' 'residential Flat Building' 'roof Terrace' 'conciliation Conference' 'development Consent']
['planning and Environment Law'] ['modification Application' 'residential Flat Building' 'roof Terrace' 'conciliation Conference' 'development Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning a Modification Application / Orders Made Following Agreement Reached at Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the Court could determine the modification application pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979.' 'Whether the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.' 'Whether the agreement reached at the conciliation conference was a decision the Court could make in the proper exercise of its functions.']

Ratio Decidendi

The Court was satisfied that the agreed decision was one it could make in the proper exercise of its functions because the modified development remained substantially the same as the originally approved residential flat building: qualitatively, it retained the essential elements including a roof terrace for the penthouse apartment, and quantitatively, the increase in gross floor area and additional height exceedance were limited. The modification application had been notified, privacy concerns were addressed by screening vegetation and increased setbacks, and the required BASIX certificate and design verification statement accompanied the application. The proceedings were therefore...

Court Disposition

Appeal upheld; Modification Application No. MA/22/0105 approved subject to conditions.

Orders

  • ['The Appeal is upheld.' 'Modification Application No. MA/22/0105, to modify the development consent to Development Application No. DA18/1391 granted by the Respondent on 21 July 2020 relating to land at 11 and 13 Tonkin Street, Cronulla (Lots 1 to 6 S/P 1008 and Lots 1 to 10 S/P 294) is approved subject to the...