East Bay Property Pty Ltd v Bayside Council [2019] NSWLEC 1437

East Bay Property Pty Ltd v Bayside Council [2019] NSWLEC 1437

The parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 for approval of the modification application subject to conditions. The Commissioner was satisfied that the decision was one the Court could make because the modified consent related to substantially the same development as originally approved, involving alterations to the dwelling house that did not qualitatively or quantitatively change it in any significant manner. The Court was therefore required to dispose of the proceedings in accordance with the agreed decision.

Jurisdiction
Australia
Judgment Date
13 September 2019
Procedural Posture
Class 1 Appeal Against Refusal of an Application to Modify a Development Consent / Orders Made Following Agreement Reached at a Conciliation Conference
Outcome
The appeal is upheld and the modification application is approved subject to modified conditions of development consent.
Legal Topics
['modification Application' 'conciliation Conference' 'agreement Between the Parties' 'development Consent Conditions']
['planning and Environment' 'development Consent Modification'] ['modification Application' 'conciliation Conference' 'agreement Between the Parties' 'development Consent Conditions']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of an Application to Modify a Development Consent / Orders Made Following Agreement Reached at a Conciliation Conference

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 on an appeal under s 8.9 of that Act.' 'Whether the decision agreed by the parties was one the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court 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.']

Ratio Decidendi

The parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 for approval of the modification application subject to conditions. The Commissioner was satisfied that the decision was one the Court could make because the modified consent related to substantially the same development as originally approved, involving alterations to the dwelling house that did not qualitatively or quantitatively change it in any significant manner. The Court was therefore required to dispose of the proceedings in accordance with the agreed decision.

Court Disposition

The appeal is upheld and the modification application is approved subject to modified conditions of development consent.

Orders

  • ['The appeal is upheld.' 'Modification Application no. DA-2007/344/B to modify the development consent to DA-2007/344 granted by the Respondent on 29 March 2007 is determined by approving the modification as set out at Annexure "A".' 'As a consequence of (2), Development Consent DA-2007/344 is now subject to the...