Kingsway Development NSW Pty Ltd v Bayside Council [2023] NSWLEC 1516

Kingsway Development NSW Pty Ltd v Bayside Council [2023] NSWLEC 1516

The modification application satisfies the requirement that the proposed development, as modified, is substantially the same as the approved development under s 4.55 of the EPA Act, and all relevant statutory preconditions are met per the parties’ agreement, supporting orders modifying the consent.

Jurisdiction
Australia
Judgment Date
12 September 2023
Procedural Posture
Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 / Determination Following Negotiated Agreement Under S 34 of the Land and Environment Court Act 1979 After Conciliation Conference
Outcome
Appeal upheld; development consent modified per Annexure A agreed terms.
Legal Topics
['modification of Development Consent' 'design Quality' 'residential Flat Buildings' 'conciliation Conference' 'consent Conditions' 'acid Sulfate Soils' 'stormwater Management' 'carparking' 'contaminated Land']
['planning and Environment Law'] ['modification of Development Consent' 'design Quality' 'residential Flat Buildings' 'conciliation Conference' 'consent Conditions' 'acid Sulfate Soils' 'stormwater Management' 'carparking' 'contaminated Land']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 / Determination Following Negotiated Agreement Under S 34 of the Land and Environment Court Act 1979 After Conciliation Conference

Legal Issues

  1. 1 ['Whether the proposed modification results in a development substantially the same as originally consented (s 4.55 EPA Act)' 'Whether requirements under relevant environmental planning instruments and regulations are satisfied' 'Whether site contamination and acid sulfate soils have been adequately addressed' 'Whether conditions relating to integrated development and water management are met' 'Whether the design exhibits design excellence under BLEP']

Ratio Decidendi

The modification application satisfies the requirement that the proposed development, as modified, is substantially the same as the approved development under s 4.55 of the EPA Act, and all relevant statutory preconditions are met per the parties’ agreement, supporting orders modifying the consent.

Court Disposition

Appeal upheld; development consent modified per Annexure A agreed terms.

Orders

  • ['The appeal is upheld.' 'Development consent DA-2016/150 granted by Bayside Council on 27 March 2018 is modified per Annexure A terms.' 'Development consent DA-2016/150 as modified is set out in Annexure B.' "Applicant to pay Respondent's costs thrown away in fixed sum of $10,000 under s 8.15(3) EPA Act, within 28...