Baudinet v Lake Macquarie City Council [2023] NSWLEC 1378

Baudinet v Lake Macquarie City Council [2023] NSWLEC 1378

The Court was satisfied, on the evidence and the parties' agreement, that the proposed roof changes were minor, the development as modified was substantially the same as the approved development, the proposal would have an acceptable impact on the identified heritage significance of the site and precinct, and the site was suitable for the development as modified. The agreed decision was therefore one the Court could have made in the proper exercise of its functions, so the appeal was upheld and the development consent modified.

Jurisdiction
Australia
Judgment Date
18 July 2023
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of Modification Application No Da/1903/2020/a / Orders Following Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Development Consent No 1903/2020 modified by Modification Application No DA/1903/2020/A subject to the consolidated conditions of consent at Annexure A.
Legal Topics
['modification Application' 'conciliation Conference' 'agreement Between the Parties' 'jurisdictional Preconditions' 'integrated Development' 'heritage Impact' 'substantially the Same Development']
['planning and Environment' 'development Consent Modification' 'heritage'] ['modification Application' 'conciliation Conference' 'agreement Between the Parties' 'jurisdictional Preconditions' 'integrated Development' 'heritage Impact' 'substantially the Same Development']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of Modification Application No Da/1903/2020/a / Orders Following Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreed decision was a decision the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether the Court could modify Development Consent No DA/1903/2020 under s 4.55(2) of the Environmental Planning and Assessment Act 1979.' 'Whether the proposal had an acceptable impact on the identified heritage significance of the site and precinct.' 'Whether the development as modified was substantially the same development as originally approved.' 'Whether the site was suitable for the development as modified pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.']

Ratio Decidendi

The Court was satisfied, on the evidence and the parties' agreement, that the proposed roof changes were minor, the development as modified was substantially the same as the approved development, the proposal would have an acceptable impact on the identified heritage significance of the site and precinct, and the site was suitable for the development as modified. The agreed decision was therefore one the Court could have made in the proper exercise of its functions, so the appeal was upheld and the development consent modified.

Court Disposition

Appeal upheld; Development Consent No 1903/2020 modified by Modification Application No DA/1903/2020/A subject to the consolidated conditions of consent at Annexure A.

Orders

  • ['The appeal is upheld.' 'Development Consent No 1903/2020 is modified by Modification Application No DA/1903/2020/A, for minor amendments to the approved development to change the design of part of the roof, at 25 Hale Street, Catherine Hill Bay NSW 2281 (legally known as Lot 101 in DP 1194707), subject to the...