Marcus v Waverley Council [2024] NSWLEC 1148

Marcus v Waverley Council [2024] NSWLEC 1148

The Court upheld the appeal and modified the original consent because the parties' s 34 agreement was within power: the amended modification application was substantially the same development as originally approved, no consultation with a Minister, public authority or approval body was required, notification had occurred and submissions were considered, the relevant merit concerns were satisfactorily addressed, and applicable planning controls and environmental planning instruments did not prevent approval.

Jurisdiction
Australia
Judgment Date
28 March 2024
Procedural Posture
Class 1 Appeal Concerning Refusal of Modification Application DA 324/2018/b Under S 4.55(2) of the Environmental Planning and Assessment Act 1979 / Principal Judgment After Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
The appeal was upheld and development consent no. DA-324/2018 was modified.
Legal Topics
['section 34 Conciliation Agreement' 'modification of Development Consent' 'substantially the Same Development' 'residential Flat Development' 'existing Use Rights' 'building Height' 'floor Space Ratio' 'basix' 'land Contamination' 'stormwater']
['planning and Environment' 'development Consent Modification'] ['section 34 Conciliation Agreement' 'modification of Development Consent' 'substantially the Same Development' 'residential Flat Development' 'existing Use Rights' 'building Height' 'floor Space Ratio' 'basix' 'land Contamination' 'stormwater']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning Refusal of Modification Application DA 324/2018/b Under S 4.55(2) of the Environmental Planning and Assessment Act 1979 / Principal Judgment After Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 and Agreement Between the Parties

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 the modified development was substantially the same development as the development for which consent was originally granted for the purposes of s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether the statutory requirements for consultation, notification and consideration of submissions under s 4.55(2) of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the amended modification application satisfactorily addressed merit concerns including height, FSR, bulk and scale, parking, streetscape impacts, non-conforming use and storage.' 'Whether relevant environmental planning instruments and policies, including BASIX, the RH SEPP and the Waverley Local Environmental Plan 2012, were satisfied.']

Ratio Decidendi

The Court upheld the appeal and modified the original consent because the parties' s 34 agreement was within power: the amended modification application was substantially the same development as originally approved, no consultation with a Minister, public authority or approval body was required, notification had occurred and submissions were considered, the relevant merit concerns were satisfactorily addressed, and applicable planning controls and environmental planning instruments did not prevent approval.

Court Disposition

The appeal was upheld and development consent no. DA-324/2018 was modified.

Orders

  • ['The appeal is upheld.' 'Development consent no. DA-324/2018 is modified in the terms set out in Annexure A.' 'Development consent no. DA-324/2018 as modified is Annexure B.']