JS Development NSW Pty Ltd v Penrith City Council [2019] NSWLEC 1525

JS Development NSW Pty Ltd v Penrith City Council [2019] NSWLEC 1525

Because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979, the amended proposal resolved the Council's contentions, and the Court was satisfied that the decision was one it could make in the proper exercise of its functions and that the jurisdictional pre-conditions had been met, the appeal was upheld and the modification application was approved subject to conditions.

Jurisdiction
Australia
Judgment Date
30 October 2019
Procedural Posture
Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Orders Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; modification application approved subject to conditions.
Legal Topics
['modification Application' 'development Consent' 'residential Flat Building' 'conciliation Conference' 'agreement Between Parties' 'sepp 65' 'basix' 'penrith Local Environmental Plan 2010']
['planning and Environment Law'] ['modification Application' 'development Consent' 'residential Flat Building' 'conciliation Conference' 'agreement Between Parties' 'sepp 65' 'basix' 'penrith Local Environmental Plan 2010']

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Procedural Posture

Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Orders Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could approve Modification Application DA16/0255.03 for modification of development consent 155751/2016 following the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the amended modification application satisfied the jurisdictional pre-conditions to modification, including substantial sameness under s 4.56(1)(a) of the Environmental Planning and Assessment Act 1979 and notification under s 4.56(1)(b).' 'Whether relevant planning considerations and pre-conditions, including the Penrith Local Environmental Plan 2010 zone objectives, SEPP 65 design verification, and BASIX requirements, were addressed.']

Ratio Decidendi

Because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979, the amended proposal resolved the Council's contentions, and the Court was satisfied that the decision was one it could make in the proper exercise of its functions and that the jurisdictional pre-conditions had been met, the appeal was upheld and the modification application was approved subject to conditions.

Court Disposition

Appeal upheld; modification application approved subject to conditions.

Orders

  • ['Leave is granted to the Applicant to rely upon the amended plans and documents listed in condition 1 of Annexure "A" hereto.' "The Applicant is to pay the Respondent's costs in the sum of $5,000 within 14 days." 'The appeal is upheld.' 'Modification Application DA16/0255.03 for the modification of development...