Lu v Burwood Council [2021] NSWLEC 1727

Lu v Burwood Council [2021] NSWLEC 1727

The parties reached an agreement under s 34 of the Land and Environment Court Act 1979 to modify the Development Control Order. The Court was satisfied that the proposed modification was a decision the Court could have made in the proper exercise of its functions, that the building was being used in contravention of a planning approval so there was power to issue the order, and that there was no jurisdictional impediment. The Court was therefore required to dispose of the proceedings in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
25 November 2021
Procedural Posture
Class 1 Appeal Pursuant to S 8.18 of the Environmental Planning and Assessment Act 1979 Against a Development Control Order / Final Orders Following Conciliation Conference and Agreement Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Development Control Order modified; no order as to costs.
Legal Topics
['appeal Against Development Control Order' 'cease Use of Building' 'works Carried Out Otherwise Than in Accordance With Development Consent' 'occupation Without Occupation Certificate' 'conciliation Agreement' 'modification of Order']
['planning and Environment' 'development Control' 'land and Environment Court Procedure'] ['appeal Against Development Control Order' 'cease Use of Building' 'works Carried Out Otherwise Than in Accordance With Development Consent' 'occupation Without Occupation Certificate' 'conciliation Agreement' 'modification of Order']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Pursuant to S 8.18 of the Environmental Planning and Assessment Act 1979 Against a Development Control Order / Final Orders Following Conciliation Conference and Agreement Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court should dispose of the proceedings in accordance with the parties' agreement under s 34 of the Land and Environment Court Act 1979." 'Whether the Development Control Order could be modified under s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979.' 'Whether there was power to issue the order where the building was being used in contravention of a planning approval.']

Ratio Decidendi

The parties reached an agreement under s 34 of the Land and Environment Court Act 1979 to modify the Development Control Order. The Court was satisfied that the proposed modification was a decision the Court could have made in the proper exercise of its functions, that the building was being used in contravention of a planning approval so there was power to issue the order, and that there was no jurisdictional impediment. The Court was therefore required to dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

Appeal upheld; Development Control Order modified; no order as to costs.

Orders

  • ['The appeal is upheld.' 'Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Court orders that terms of the Development Control Order issued by the Respondent to the Applicant under s 9.34 and Schedule 5 of the Environmental Planning and Assessment Act 1979 and dated 7 June 2021 in...