Myliotis v Georges River Council [2022] NSWLEC 1525

Myliotis v Georges River Council [2022] NSWLEC 1525

Because the agreed modification application met the identified pre-jurisdictional requirements, the modified development was substantially the same as the originally approved development, the applicable Kogarah Local Environmental Plan 2012 provisions continued to apply through the savings provision, and the BASIX and owner's consent requirements were addressed, the parties' decision was one the Court could have made in the proper exercise of its functions; the Court was therefore required to dispose of the proceedings in accordance with the agreement under s 34(3) of the Land Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
27 September 2022
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Modification Application Mod2021/0142 Under S 8.9 of the Environmental Planning and Assessment Act 1979 / Orders Following Mandatory Conciliation Conference and Agreement Under S 34 of the Land Environment Court Act 1979
Outcome
Appeal upheld; Development Consent DA2017/0579 modified in accordance with the agreed terms.
Legal Topics
['modification Application' 'development Consent' 'dual Occupancy Development' 'deemed Refusal Appeal' 'conciliation Conference' 'basix']
['planning and Environment Law'] ['modification Application' 'development Consent' 'dual Occupancy Development' 'deemed Refusal Appeal' 'conciliation Conference' 'basix']

Case Brief

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Modification Application Mod2021/0142 Under S 8.9 of the Environmental Planning and Assessment Act 1979 / Orders Following Mandatory Conciliation Conference and Agreement Under S 34 of the Land Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land Environment Court Act 1979." 'Whether the modified development was substantially the same as the development for which consent was originally granted under s 4.55(2) of the Environmental Planning and Assessment Act 1979.' 'Whether the relevant environmental planning instrument requirements, including the applicable savings provision and BASIX requirements, were satisfied.']

Ratio Decidendi

Because the agreed modification application met the identified pre-jurisdictional requirements, the modified development was substantially the same as the originally approved development, the applicable Kogarah Local Environmental Plan 2012 provisions continued to apply through the savings provision, and the BASIX and owner's consent requirements were addressed, the parties' decision was one the Court could have made in the proper exercise of its functions; the Court was therefore required to dispose of the proceedings in accordance with the agreement under s 34(3) of the Land Environment Court Act 1979.

Court Disposition

Appeal upheld; Development Consent DA2017/0579 modified in accordance with the agreed terms.

Orders

  • ['The appeal is upheld.' 'Development Consent DA2017/0579 for the demolition of existing structures and construction of a dual occupancy development at 47 Boronia Street, Kyle Bay is modified in the terms in Annexure "A".' 'Development consent DA2017/0579 as modified by the Court is at Annexure "B".']