Butterworth v Canterbury-Bankstown Council [2023] NSWLEC 1453

Butterworth v Canterbury-Bankstown Council [2023] NSWLEC 1453

Because the parties reached an agreement at the s 34AA conciliation conference, the Council consented to amendments, and the Acting Commissioner was satisfied that the relevant jurisdictional pre-requisites and planning controls were met and that there was no jurisdictional impediment, the agreed decision was one the Court could have made in the proper exercise of its functions; s 34(3) therefore required the Court to dispose of the proceedings in accordance with the parties' decision by upholding the appeal and granting development consent subject to conditions.

Jurisdiction
Australia
Judgment Date
16 August 2023
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No DA 112/2022 / Conciliation Conference Under S 34 Aa(2)(a) of the Land and Environment Court Act 1979; Agreement Reached and Orders Made
Outcome
Appeal allowed; development application No DA-112/2022 approved subject to conditions set out in Annexure A.
Legal Topics
['demolition of Existing Structures' 'construction of Dwelling House With Basement Level and Swimming Pool' 'conciliation Conference' 'jurisdictional Pre Requisites to Grant of Development Consent' 'conditions of Consent']
['planning and Environment Law' 'development Consent' 'land and Environment Court Proceedings'] ['demolition of Existing Structures' 'construction of Dwelling House With Basement Level and Swimming Pool' 'conciliation Conference' 'jurisdictional Pre Requisites to Grant of Development Consent' 'conditions of Consent']

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No DA 112/2022 / Conciliation Conference Under S 34 Aa(2)(a) of the Land and Environment Court Act 1979; Agreement Reached and Orders Made

Legal Issues

  1. 1 ['Whether the Court could grant development consent to the amended development application in the proper exercise of its functions under s 4.16(1)(a) of the Environmental Planning and Assessment Act 1979.' "Whether there was any jurisdictional impediment to making orders giving effect to the parties' agreement reached at the conciliation conference." 'Whether relevant planning controls and requirements concerning contamination, vegetation clearing, BASIX, zoning, height, floor space ratio and earthworks were satisfied.']

Ratio Decidendi

Because the parties reached an agreement at the s 34AA conciliation conference, the Council consented to amendments, and the Acting Commissioner was satisfied that the relevant jurisdictional pre-requisites and planning controls were met and that there was no jurisdictional impediment, the agreed decision was one the Court could have made in the proper exercise of its functions; s 34(3) therefore required the Court to dispose of the proceedings in accordance with the parties' decision by upholding the appeal and granting development consent subject to conditions.

Court Disposition

Appeal allowed; development application No DA-112/2022 approved subject to conditions set out in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development application No DA-112/2022 for the demolition of existing structures and the construction of a new dwelling house with a basement level and swimming pool at 4 Faye Avenue, Earlwood NSW 2206 legally known as Lot 1 DP 232761, is approved, subject to the conditions set out in...