Mghder v Sutherland Shire Council [2022] NSWLEC 1675

Mghder v Sutherland Shire Council [2022] NSWLEC 1675

Because the parties reached agreement after the s 34 conciliation conference, the identified jurisdictional prerequisites were satisfied, and the agreed decision to grant consent subject to conditions was one the Court could have made in the proper exercise of its functions, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement.

Jurisdiction
Australia
Judgment Date
08 December 2022
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application Da21/0678 / Final Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; development consent granted subject to conditions; applicant to pay respondent's costs thrown away by the amendment in a sum to be agreed or assessed.
Legal Topics
['development Application Appeal' 'shop Top Housing Development' 'strata Subdivision' 'conciliation Conference' 'consent Orders' 'jurisdictional Prerequisites' 'costs Thrown Away by Amendment']
['planning and Environment' 'development Consent' 'land and Environment Court Proceedings'] ['development Application Appeal' 'shop Top Housing Development' 'strata Subdivision' 'conciliation Conference' 'consent Orders' 'jurisdictional Prerequisites' 'costs Thrown Away by Amendment']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application Da21/0678 / Final Orders Following S 34 Conciliation Conference and Agreement Between the Parties

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 development consent should be granted to amended development application DA21/0678 for demolition of existing structures, construction of a shop top housing development and strata subdivision at 21-23 Casuarina Road, Gymea Bay.' "Whether the applicant should pay the respondent's costs thrown away by amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979."]

Ratio Decidendi

Because the parties reached agreement after the s 34 conciliation conference, the identified jurisdictional prerequisites were satisfied, and the agreed decision to grant consent subject to conditions was one the Court could have made in the proper exercise of its functions, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement.

Court Disposition

Appeal upheld; development consent granted subject to conditions; applicant to pay respondent's costs thrown away by the amendment in a sum to be agreed or assessed.

Orders

  • ["The applicant is to pay the respondent's costs thrown away by the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in a sum to be agreed or assessed." 'The appeal is upheld.' 'Development consent is granted to development application DA21/0678...