Rose v Mosman Council [2022] NSWLEC 1347

Rose v Mosman Council [2022] NSWLEC 1347

Because the parties agreed to amended plans and orders, the relevant jurisdictional prerequisites were satisfied, the proposed modified development remained substantially the same as the originally approved development, notification requirements had been met, and the agreed decision was one the Court could make in the proper exercise of its functions, the Court was required under 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
05 July 2022
Procedural Posture
Class 1 Appeal Against Actual Refusal of a Modification Application Under S 8.9 of the Environmental Planning and Assessment Act 1979 / Final Orders Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Modification Application No 8.2020.18.3 approved and Development Consent modified subject to consolidated conditions.
Legal Topics
['modification Application' 'development Consent' 'dwelling' 'conciliation Conference' 'agreement Between Parties' 'substantially the Same Development Test']
['planning and Environment Law'] ['modification Application' 'development Consent' 'dwelling' 'conciliation Conference' 'agreement Between Parties' 'substantially the Same Development Test']

Case Brief

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Procedural Posture

Class 1 Appeal Against Actual Refusal of a Modification Application Under S 8.9 of the Environmental Planning and Assessment Act 1979 / Final 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 make orders giving effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the proposed modification under s 4.55(2) of the Environmental Planning and Assessment Act 1979 would result in development that is substantially the same as the development for which consent was originally granted.' 'Whether notification requirements for the s 4.55 modification application had been met.']

Ratio Decidendi

Because the parties agreed to amended plans and orders, the relevant jurisdictional prerequisites were satisfied, the proposed modified development remained substantially the same as the originally approved development, notification requirements had been met, and the agreed decision was one the Court could make in the proper exercise of its functions, the Court was required under s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

Appeal upheld; Modification Application No 8.2020.18.3 approved and Development Consent modified subject to consolidated conditions.

Orders

  • ['The appeal is upheld.' 'Modification Application No 8.2020.18.3 (as amended) is approved and the Development Consent 8.2020.18.2, is modified as set out in Annexure "A" to this judgement.' 'The Development Consent 8.2020.18.3, as approved by the Court, is subject to the consolidated conditions of Development...