Hy-Tec Industries PTY LTD v City of Parramatta Council [2023] NSWLEC 1406

Hy-Tec Industries PTY LTD v City of Parramatta Council [2023] NSWLEC 1406

Because the modification only extended the duration of the already approved temporary concrete works by six months, involved no physical or external change, was of minimal environmental impact, left the development substantially the same, did not require notification under the applicable community participation plan or development control plan, and raised no further s 4.15(1) matter preventing approval, the parties' agreed decision was one the Court could have made in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' agreement and approve the modification.

Jurisdiction
Australia
Judgment Date
26 July 2023
Procedural Posture
Class 1 Appeal Concerning a Modification Application to Da/749/2021 / Orders Made After a Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
The appeal was upheld and the modification application was approved, with no order as to costs.
Legal Topics
['modification of Development Consent' 'temporary Concrete Works' 'minimal Environmental Impact' 'substantially the Same Development' 'notification of Modification Applications' 'conciliation Conference Orders']
['environmental Planning and Development' 'land and Environment Court Procedure'] ['modification of Development Consent' 'temporary Concrete Works' 'minimal Environmental Impact' 'substantially the Same Development' 'notification of Modification Applications' 'conciliation Conference Orders']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning a Modification Application to Da/749/2021 / Orders Made After a Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ['Whether the Court had power under s 4.55(8) of the Environmental Planning and Assessment Act 1979 to modify a consent granted by the Court.' 'Whether the proposed modification was of minimal environmental impact under s 4.55(1A)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether the development as modified was substantially the same development as the development originally approved under s 4.55(1A)(b) of the Environmental Planning and Assessment Act 1979.' 'Whether notification requirements under s 4.55(1A)(c) of the Environmental Planning and Assessment Act 1979, the Environmental Planning and Assessment Regulation 2021 and applicable plans were satisfied.' 'Whether the matters for consideration under ss 4.55(3) and 4.15(1) of the Environmental Planning and Assessment Act 1979 supported approval of the modification.' "Whether the parties' agreement 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."]

Ratio Decidendi

Because the modification only extended the duration of the already approved temporary concrete works by six months, involved no physical or external change, was of minimal environmental impact, left the development substantially the same, did not require notification under the applicable community participation plan or development control plan, and raised no further s 4.15(1) matter preventing approval, the parties' agreed decision was one the Court could have made in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' agreement and approve the modification.

Court Disposition

The appeal was upheld and the modification application was approved, with no order as to costs.

Orders

  • ['The appeal is upheld.' 'The modification to DA/749/2021 for the installation and operation of a temporary concrete works for production of pre-mixed concrete on Lot 2, DP 539890 (being Lease Area 5) on the land known as 37A Grand Avenue, Camellia is approved as set out in Annexure A, and as set out in the...