Tran v Fairfield City Council [2023] NSWLEC 1486

Tran v Fairfield City Council [2023] NSWLEC 1486

The Court upheld the appeal and approved the amended modification application because the parties reached an agreement under s 34, no jurisdictional prerequisite prevented the Court from acting on that agreement, the modified development remained substantially the same as the originally approved development, notification requirements had been met, and the agreed decision was one the Court could make in the proper exercise of its functions.

Jurisdiction
Australia
Judgment Date
05 September 2023
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Actual Refusal of a Modification Application Made Pursuant to S 4.55(1 A) / Orders Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; Modification Application No 2.3/1987 (as amended) approved; Development Consent to DA634/1987 modified and subject to consolidated conditions.
Legal Topics
['modification Application' 'development Consent' 'conciliation Conference' 'substantially the Same Development Test' 'bakery Operating Hours']
['planning and Environment Law'] ['modification Application' 'development Consent' 'conciliation Conference' 'substantially the Same Development Test' 'bakery Operating Hours']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Actual Refusal of a Modification Application Made Pursuant to S 4.55(1 A) / Orders Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the proposed modification would result in development that is substantially the same as the development for which consent was originally granted.' 'Whether notification requirements for the modification application had been met.' 'Whether the appeal should be upheld and the modification application approved.']

Ratio Decidendi

The Court upheld the appeal and approved the amended modification application because the parties reached an agreement under s 34, no jurisdictional prerequisite prevented the Court from acting on that agreement, the modified development remained substantially the same as the originally approved development, notification requirements had been met, and the agreed decision was one the Court could make in the proper exercise of its functions.

Court Disposition

Appeal upheld; Modification Application No 2.3/1987 (as amended) approved; Development Consent to DA634/1987 modified and subject to consolidated conditions.

Orders

  • ['The appeal is upheld.' 'Modification Application No 2.3/1987 (as amended) is approved and the Development Consent granted to Development Application DA634/1987 by the Respondent on 4 January 1988, is modified as set out in Annexure A to this judgment.' 'The Development Consent to Development Application...