Power v Inner West Council [2022] NSWLEC 1691

Power v Inner West Council [2022] NSWLEC 1691

The Court was satisfied that the parties' agreed decision to approve the amended modification application was one the Court could make in the proper exercise of its functions because the modified development was substantially the same as the originally approved development, no concurrence or general terms of approval required consultation, notification and submissions were addressed, relevant s 4.15(1) matters and original consent reasons did not preclude approval, BASIX, resilience and hazards, heritage, geotechnical, structural, excavation and public interest matters were acceptable or manageable by conditions. Under s 34(3) of the Land and Environment Court Act 1979, the Court was...

Jurisdiction
Australia
Judgment Date
13 December 2022
Procedural Posture
Class 1 Appeal Concerning a Modification Application to Modify Development Consent Da/2020/0331 / Orders Following Agreement Reached at Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; modification application approved; development consent DA/2020/0331 modified and made subject to consolidated conditions.
Legal Topics
['modification Application Under S 4.55(2) of the Environmental Planning and Assessment Act 1979' 'conciliation Conference Agreement' 'amendment of Modification Application' 'substantially the Same Development' 'notification and Submissions' 'heritage Impacts' 'basix' 'excavation and Construction Impacts']
['planning and Environment' 'development Consent Modification' 'land and Environment Court Procedure'] ['modification Application Under S 4.55(2) of the Environmental Planning and Assessment Act 1979' 'conciliation Conference Agreement' 'amendment of Modification Application' 'substantially the Same Development' 'notification and Submissions' 'heritage Impacts' 'basix' 'excavation and Construction Impacts']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning a Modification Application to Modify Development Consent Da/2020/0331 / Orders Following Agreement Reached at Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether leave should be granted to amend modification application MOD/2021/0522.' 'Whether the modified development was quantitatively and qualitatively substantially the same development as the development for which consent was originally granted under s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether notification, submissions, relevant environmental planning matters, heritage impacts, BASIX requirements, excavation impacts, site suitability and the public interest permitted approval of the modification application.' "Whether the parties' agreed decision was one the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979."]

Ratio Decidendi

The Court was satisfied that the parties' agreed decision to approve the amended modification application was one the Court could make in the proper exercise of its functions because the modified development was substantially the same as the originally approved development, no concurrence or general terms of approval required consultation, notification and submissions were addressed, relevant s 4.15(1) matters and original consent reasons did not preclude approval, BASIX, resilience and hazards, heritage, geotechnical, structural, excavation and public interest matters were acceptable or manageable by conditions. Under s 34(3) of the Land and Environment Court Act 1979, the Court was...

Court Disposition

Appeal upheld; modification application approved; development consent DA/2020/0331 modified and made subject to consolidated conditions.

Orders

  • ['Leave is granted to the Applicants to amend the modification application MOD/2021/0522 and rely on the plans and documents listed at condition 1 of Annexure A.' 'The appeal is upheld.' 'Modification Application MOD/2021/0522 to modify DA/2020/0331 is approved.' 'Development consent DA/2020/0331 is modified in the...