Hadjiangeli v Sutherland Shire Council [2018] NSWLEC 1669

Hadjiangeli v Sutherland Shire Council [2018] NSWLEC 1669

Because the proposed residential flat building use was permissible in the R4 High Density Residential zone, affordable rental housing was permissible on the site under State Environmental Planning Policy- Affordable Rental Housing 2009, the parties agreed and the Court found that the modified development was substantially the same development as originally approved, notification had occurred and submissions had been considered, and no jurisdictional impediment was identified, the agreed decision was one the Court could make in the proper exercise of its functions and the proceedings had to be disposed of in accordance with the parties' agreement under s 34(3) of the Land and Environment...

Jurisdiction
Australia
Judgment Date
18 December 2018
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Modification Application No. MA 17/0533 / Final Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; modification application approved subject to conditions; development consent modified by consolidated conditions.
Legal Topics
['modification Application' 'development Consent' 'affordable Rental Housing' 'conciliation Conference' 'consent Orders']
['environmental Planning and Development' 'land and Environment Court Procedure'] ['modification Application' 'development Consent' 'affordable Rental Housing' 'conciliation Conference' 'consent Orders']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Modification Application No. MA 17/0533 / Final Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision to uphold the appeal and grant development consent subject to conditions 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 as modified was substantially the same development as the development for which consent was originally granted under s 4.55(2) of the Environmental Planning and Assessment Act 1979.' 'Whether there was any jurisdictional impediment to making the agreed orders.']

Ratio Decidendi

Because the proposed residential flat building use was permissible in the R4 High Density Residential zone, affordable rental housing was permissible on the site under State Environmental Planning Policy- Affordable Rental Housing 2009, the parties agreed and the Court found that the modified development was substantially the same development as originally approved, notification had occurred and submissions had been considered, and no jurisdictional impediment was identified, the agreed decision was one the Court could make in the proper exercise of its functions and the proceedings had to be disposed of in accordance with the parties' agreement under s 34(3) of the Land and Environment...

Court Disposition

Appeal upheld; modification application approved subject to conditions; development consent modified by consolidated conditions.

Orders

  • ["The Applicant is granted leave to amend the modification application to rely upon the amended architectural plans referred to in condition 1 of Annexure 'A'." "The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979 as agreed or assessed."...