Lamar 18 Pty Ltd v Waverley Council [2018] NSWLEC 1677

Lamar 18 Pty Ltd v Waverley Council [2018] NSWLEC 1677

The Court gave effect to the parties' s 34(3) agreement because the Commissioner was satisfied that granting the modification application subject to conditions was a decision the Court could make in the proper exercise of its functions: qualitatively, the proposal remained a residential flat building consistent with the approved development, and quantitatively, the addition of two apartments and an extra storey did not alter the development so as to render it not substantially the same. The later inconsistency concerning section drawings DA 20 and DA 21 was an accidental slip or omission capable of correction under UCPR 36.17.

Jurisdiction
Australia
Judgment Date
20 December 2018
Procedural Posture
Class 1 Appeal Against Refusal of a Modification Application for a Residential Flat Building / Final Orders Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979, With Addendum Amending Orders Under UCPR 36.17
Outcome
Appeal upheld; development application DA 482/2016 modified in accordance with modification application 482/2016/A subject to modified conditions, with orders later amended under UCPR 36.17.
Legal Topics
['modification Application' 'development Consent' 'residential Flat Building' 'conciliation Conference' 'agreement Between Parties' 'slip Rule Amendment']
['planning and Environment Law'] ['modification Application' 'development Consent' 'residential Flat Building' 'conciliation Conference' 'agreement Between Parties' 'slip Rule Amendment']

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Procedural Posture

Class 1 Appeal Against Refusal of a Modification Application for a Residential Flat Building / Final Orders Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979, With Addendum Amending Orders Under UCPR 36.17

Legal Issues

  1. 1 ["Whether the Court should give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 to grant the modification application subject to conditions." 'Whether the development as modified was substantially the same development as the development for which consent was originally granted.' 'Whether condition 1 of Annexure A and condition 1 of Annexure B should be amended under UCPR 36.17 to correct an accidental slip or omission.']

Ratio Decidendi

The Court gave effect to the parties' s 34(3) agreement because the Commissioner was satisfied that granting the modification application subject to conditions was a decision the Court could make in the proper exercise of its functions: qualitatively, the proposal remained a residential flat building consistent with the approved development, and quantitatively, the addition of two apartments and an extra storey did not alter the development so as to render it not substantially the same. The later inconsistency concerning section drawings DA 20 and DA 21 was an accidental slip or omission capable of correction under UCPR 36.17.

Court Disposition

Appeal upheld; development application DA 482/2016 modified in accordance with modification application 482/2016/A subject to modified conditions, with orders later amended under UCPR 36.17.

Orders

  • ['By consent and pursuant to UCPR 36.17, condition 1 of Annexure A and condition 1 of Annexure B to the orders made on 20 December 2018 are amended to refer to DA 20 Revision F and DA 21 Revision F dated 12 February 2019, in lieu of DA 20 Revision E and DA 21 Revision E dated 29 August 2017. The words "and 13...