Gaggo v Fairfield City Council [2023] NSWLEC 1689

Gaggo v Fairfield City Council [2023] NSWLEC 1689

The Court was satisfied that the amended modification application remained substantially the same development as the original consent, that the relevant jurisdictional requirements under s 4.55 of the Environmental Planning and Assessment Act 1979 had been addressed, and that the agreed decision was one the Court could have made in the proper exercise of its functions. Under s 34(3) of the Land and Environment Court Act 1979, the Court was therefore required to dispose of the proceedings in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
16 November 2023
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Modification Application MA 309.4/2018 / Mandatory Conciliation Conference Under S 34 Aa(2)(a) of the Land and Environment Court Act 1979; Orders Made by Agreement Under S 34(3)
Outcome
Appeal upheld; modification application approved; development consent further modified and made subject to consolidated conditions.
Legal Topics
['modification Application Under S 4.55(2) of the Environmental Planning and Assessment Act 1979' 'class 1 Appeal' 'conciliation Conference and Agreed Orders' 'substantially the Same Development' 'right of Carriageway and Easement for Services' 'unauthorised Building and Civil Works']
['planning and Environment Law' 'development Consent Modification' 'land and Easements'] ['modification Application Under S 4.55(2) of the Environmental Planning and Assessment Act 1979' 'class 1 Appeal' 'conciliation Conference and Agreed Orders' 'substantially the Same Development' 'right of Carriageway and Easement for Services' 'unauthorised Building and Civil Works']

Case Brief

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Modification Application MA 309.4/2018 / Mandatory Conciliation Conference Under S 34 Aa(2)(a) of the Land and Environment Court Act 1979; Orders Made by Agreement Under S 34(3)

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 development as modified would be substantially the same development as originally approved for the purposes of s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether the jurisdictional preconditions for modification approval under s 4.55 of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether agreed changes relating to the right of carriageway and easement for services could be made without recourse to the owner of 277 Edensor Road.']

Ratio Decidendi

The Court was satisfied that the amended modification application remained substantially the same development as the original consent, that the relevant jurisdictional requirements under s 4.55 of the Environmental Planning and Assessment Act 1979 had been addressed, and that the agreed decision was one the Court could have made in the proper exercise of its functions. Under s 34(3) of the Land and Environment Court Act 1979, the Court was therefore required to dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

Appeal upheld; modification application approved; development consent further modified and made subject to consolidated conditions.

Orders

  • ['The appeal is upheld.' 'Modification application MA 309.4/2018 is approved and the Development Consent granted to DA 309.1/2018 by the Respondent on 10 July 2018, modified by the Respondent on 9 August 2019 (DA 309.2/2018), is further modified as set out in Annexure A.' 'The Development Consent to DA 309.1/2018,...