Harding v Inner West Council [2023] NSWLEC 1303

Harding v Inner West Council [2023] NSWLEC 1303

Because the development consent had been activated and had not lapsed, the amended proposal was substantially the same development as that originally approved, the heritage impacts were acceptable and an improvement on the original proposal, and the site was suitable for the proposal, the parties' agreement was a decision the Court could have made in the proper exercise of its functions; accordingly the appeal was upheld and the consent modified.

Jurisdiction
Australia
Judgment Date
16 June 2023
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Orders Following Agreement Reached at a Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979
Outcome
The appeal is upheld.
Legal Topics
['modification Application' 'conciliation Conference' 'agreement Between Parties' 'jurisdictional Prerequisites' 'heritage Conservation Area' 'substantially the Same Development']
['planning and Environment' 'development Consent Modification'] ['modification Application' 'conciliation Conference' 'agreement Between Parties' 'jurisdictional Prerequisites' 'heritage Conservation Area' 'substantially the Same Development']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Orders Following Agreement Reached at a Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreement was a decision that 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 power under s 4.55(2) of the Environmental Planning and Assessment Act 1979 to modify the development consent.' 'Whether the amended modification application satisfied the jurisdictional prerequisites, including that the consent had not lapsed and that the modified development was substantially the same development.' 'Whether the proposal was acceptable having regard to the Inner West Local Environmental Plan 2022 heritage conservation area provisions and site suitability under State Environmental Planning Policy (Resilience and Hazards) 2021.']

Ratio Decidendi

Because the development consent had been activated and had not lapsed, the amended proposal was substantially the same development as that originally approved, the heritage impacts were acceptable and an improvement on the original proposal, and the site was suitable for the proposal, the parties' agreement was a decision the Court could have made in the proper exercise of its functions; accordingly the appeal was upheld and the consent modified.

Court Disposition

The appeal is upheld.

Orders

  • ['The appeal is upheld.' 'Development Consent No. 2015/0181 is modified by Modification Application No. 2022/0001, as amended, for modifications to the approved development including altered form and height of the additions, the provision of a lower ground car parking area, the reconfiguration of the internal layout...