McInnes v Inner West Council [2021] NSWLEC 1352

McInnes v Inner West Council [2021] NSWLEC 1352

The Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions because the site was zoned R1 General Residential under Leichardt Local Environmental Plan 2013, dwelling houses were permissible in the zone, the proposed modification was substantially the same development as the original development consent, no consultation or concurrence was required, the modification application had been notified in accordance with Leichardt Development Control Plan 2013, submissions were considered, and the consent authority's reasons for granting the original consent were considered. The Court was therefore required under s 34(3) of the Land...

Jurisdiction
Australia
Judgment Date
16 June 2021
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 to Modify Development Consent DA 2020/0072 / Orders Made Following a Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979
Outcome
The appeal is upheld.
Legal Topics
['modification Application' 'development Consent Conditions' 'conciliation Conference' 'agreement Between Parties' 'land Use Planning']
['planning and Environment Law'] ['modification Application' 'development Consent Conditions' 'conciliation Conference' 'agreement Between Parties' 'land Use Planning']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 to Modify Development Consent DA 2020/0072 / Orders Made Following a Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the Court could determine the modification application pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed modification was substantially the same development as the original development consent.' 'Whether the agreement reached between the parties under s 34(3) of the Land and Environment Court Act 1979 was a decision the Court could make in the proper exercise of its functions.']

Ratio Decidendi

The Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions because the site was zoned R1 General Residential under Leichardt Local Environmental Plan 2013, dwelling houses were permissible in the zone, the proposed modification was substantially the same development as the original development consent, no consultation or concurrence was required, the modification application had been notified in accordance with Leichardt Development Control Plan 2013, submissions were considered, and the consent authority's reasons for granting the original consent were considered. The Court was therefore required under s 34(3) of the Land...

Court Disposition

The appeal is upheld.

Orders

  • ['The appeal is upheld.' 'Consent DA/2020/0072 as modified by Council on 24 March 2021 is further modified by amending conditions 1, 2 and 13 in the terms set out in Annexure A.' 'Development Consent No DA/2020/0072 as modified by the Court is set out at Annexure B.']