Karimbla Construction Services (NSW) Pty Ltd v Bayside Council [2021] NSWLEC 1593

Karimbla Construction Services (NSW) Pty Ltd v Bayside Council [2021] NSWLEC 1593

Because the parties' s 34 decision was within the Court's power, the relevant jurisdictional preconditions for the development application were satisfied, and the modification to Condition 16 was wholly procedural, of minimal or no environmental impact, and related to substantially the same development, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
15 October 2021
Procedural Posture
Class 1 Appeals Concerning a Modification Application to a Concept Plan Approval and a Development Application Following Deemed Refusals by Bayside Council / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Agreement Between the Parties; Final Orders
Outcome
Appeals upheld; Development Consent No. DA-2019/386 modified; Development Application DA-2020/303 granted consent subject to conditions.
Legal Topics
['concept Plan Approval' 'stage 1 Development Application' 'deemed Refusal' 'conciliation Conference' 'jurisdictional Prerequisites' 'design Excellence' 'flooding' 'stormwater Management' 'remediation of Land' 'residential Apartment Development']
['planning and Environment' 'development Consent' 'modification Application'] ['concept Plan Approval' 'stage 1 Development Application' 'deemed Refusal' 'conciliation Conference' 'jurisdictional Prerequisites' 'design Excellence' 'flooding' 'stormwater Management' 'remediation of Land' 'residential Apartment Development']

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Procedural Posture

Class 1 Appeals Concerning a Modification Application to a Concept Plan Approval and a Development Application Following Deemed Refusals by Bayside Council / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Agreement Between the Parties; Final Orders

Legal Issues

  1. 1 ["Whether the parties' decision in the s 34 agreement was a decision the Court could have made in the proper exercise of its functions" 'Whether jurisdictional prerequisites under relevant environmental planning instruments were satisfied for the grant of development consent' 'Whether the proposed modification to Condition 16 was of minimal or no environmental impact and related to substantially the same development' 'Whether the development application should be granted consent subject to agreed conditions']

Ratio Decidendi

Because the parties' s 34 decision was within the Court's power, the relevant jurisdictional preconditions for the development application were satisfied, and the modification to Condition 16 was wholly procedural, of minimal or no environmental impact, and related to substantially the same development, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

Appeals upheld; Development Consent No. DA-2019/386 modified; Development Application DA-2020/303 granted consent subject to conditions.

Orders

  • ['In proceedings 2021/189113, the appeal is upheld.' 'Development Consent No. DA-2019/386 is modified in the terms in Annexure C.' 'Development Consent No. DA-2019/386 as modified by the Court is Annexure D.' 'In proceedings 2021/69719, the appeal is upheld.' "The Applicant is to pay the Respondent's costs that have...