Topper v Waverley Council [2024] NSWLEC 1186

Topper v Waverley Council [2024] NSWLEC 1186

Because the Court was satisfied that the jurisdictional prerequisites for approval of the modification application had been met, including substantial sameness, consultation and consideration of relevant planning matters, and because any restrictive covenant did not prevent the grant of consent to the extent necessary, the parties' agreed decision was one the Court could have made in the proper exercise of its functions and the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
16 April 2024
Procedural Posture
Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of a Modification Application / Conciliation Conference Under Ss 34 Aa(2) and 34(1) of the Land and Environment Court Act 1979; Agreement Reached and Final Orders Made
Outcome
The appeal was upheld and Modification Application 365/2014/B was approved.
Legal Topics
['modification Application' 'development Consent' 'deemed Refusal Appeal' 'conciliation Conference' 'restrictive Covenant' 'jurisdictional Prerequisites']
['planning and Environment Law' 'land and Environment Court Procedure'] ['modification Application' 'development Consent' 'deemed Refusal Appeal' 'conciliation Conference' 'restrictive Covenant' 'jurisdictional Prerequisites']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of a Modification Application / Conciliation Conference Under Ss 34 Aa(2) and 34(1) of the Land and Environment Court Act 1979; Agreement Reached and Final Orders Made

Legal Issues

  1. 1 ["Whether the Court could approve Modification Application 365/2014/B in accordance with the parties' agreement reached at conciliation." 'Whether the proposed modified development was substantially the same development as that originally approved under s 4.55(2) of the Environmental Planning and Assessment Act 1979.' 'Whether the statutory consultation, notification, objection consideration and s 4.15 matters relevant to s 4.55(2) and (3) of the Environmental Planning and Assessment Act 1979 had been addressed.' 'Whether a restrictive covenant concerning height prevented the grant of consent to the modification application.']

Ratio Decidendi

Because the Court was satisfied that the jurisdictional prerequisites for approval of the modification application had been met, including substantial sameness, consultation and consideration of relevant planning matters, and because any restrictive covenant did not prevent the grant of consent to the extent necessary, the parties' agreed decision was one the Court could have made in the proper exercise of its functions and the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Court Disposition

The appeal was upheld and Modification Application 365/2014/B was approved.

Orders

  • ['The appeal is upheld.' 'Modification Application 365/2014/B is approved and development Consent No. 365/2014 is further modified in the terms in Annexure A.' 'Development Consent No. 365/2014 as modified by the Court is set out in Annexure B.']