Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2022] NSWCA 227

Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2022] NSWCA 227

No breach of s 4.55(3) occurred because the Council had not given reasons for the original consent; thus, there were no reasons to consider in determining the modification application. The appellant did not discharge the onus of proving the Council failed to form the opinion required by s 4.55(2)(a); on the evidence, it could be inferred the Council addressed the statutory precondition before granting the modification.

Jurisdiction
Australia
Judgment Date
09 November 2022
Procedural Posture
Appeal / Appeal From Land and Environment Court to NSW Court of Appeal
Outcome
Appeal dismissed
Legal Topics
['modification of Development Consent' 'statutory Interpretation' 'jurisdictional Precondition' 'reasons for Decision' 'satisfaction of Statutory Test']
['administrative Law' 'planning and Environment Law' 'judicial Review'] ['modification of Development Consent' 'statutory Interpretation' 'jurisdictional Precondition' 'reasons for Decision' 'satisfaction of Statutory Test']

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Procedural Posture

Appeal / Appeal From Land and Environment Court to NSW Court of Appeal

Legal Issues

  1. 1 ['Whether the Council breached s 4.55(3) of the Environmental Planning and Assessment Act 1979 (NSW) by failing to consider reasons given for the original grant of consent.' 'Whether the Council failed to form the requisite opinion of satisfaction under s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979 (NSW) that the modified development was substantially the same as the originally approved development.']

Ratio Decidendi

No breach of s 4.55(3) occurred because the Council had not given reasons for the original consent; thus, there were no reasons to consider in determining the modification application. The appellant did not discharge the onus of proving the Council failed to form the opinion required by s 4.55(2)(a); on the evidence, it could be inferred the Council addressed the statutory precondition before granting the modification.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' "The appellant is to pay the respondents' costs of the appeal."]