Kellner v Sutherland Shire Council [2022] NSWLEC 1280

Kellner v Sutherland Shire Council [2022] NSWLEC 1280

Because the amended Modification Application was made with the owner's consent, was amended with the Respondent's agreement, resolved the Respondent's contentions and public submission issues, maintained compliance with relevant provisions of the Sutherland Shire Local Environmental Plan 2015 and applicable State Environmental Planning Policies, and the parties' agreed decision was one the Court could have made in the proper exercise of its functions, the Court was required under s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
02 June 2022
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Concerning Modification Application Ma22/0011 to Development Consent Da19/0868 / Orders Made Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Development Consent DA19/0868 modified in accordance with the parties' agreement.
Legal Topics
['modification Application' 'multi Dwelling Housing Development' 'conciliation Conference Agreement' 'environmental Planning Instruments' 'basix' 'remediation of Land' 'urban Design' 'stormwater Management' 'privacy and Overlooking']
['planning and Environment Law' 'development Consent Modification'] ['modification Application' 'multi Dwelling Housing Development' 'conciliation Conference Agreement' 'environmental Planning Instruments' 'basix' 'remediation of Land' 'urban Design' 'stormwater Management' 'privacy and Overlooking']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Concerning Modification Application Ma22/0011 to Development Consent Da19/0868 / Orders Made Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreed decision 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 Court could exercise the function under s 4.55(8) of the Environmental Planning and Assessment Act 1979 to modify Development Consent DA19/0868.' 'Whether jurisdictional prerequisites and relevant planning controls were satisfied for the amended Modification Application MA22/0011.']

Ratio Decidendi

Because the amended Modification Application was made with the owner's consent, was amended with the Respondent's agreement, resolved the Respondent's contentions and public submission issues, maintained compliance with relevant provisions of the Sutherland Shire Local Environmental Plan 2015 and applicable State Environmental Planning Policies, and the parties' agreed decision was one the Court could have made in the proper exercise of its functions, the Court was required under s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Court Disposition

Appeal upheld; Development Consent DA19/0868 modified in accordance with the parties' agreement.

Orders

  • ['The appeal is upheld.' 'Development Consent DA19/0868 is modified (MA 22/0011) in the terms set out at Annexure A.' 'Development Consent DA19/0868, as modified by the Court (MA 22/0011), is set out at Annexure B.']