Mantino Pty Ltd v Liverpool City Council [2023] NSWLEC 1514

Mantino Pty Ltd v Liverpool City Council [2023] NSWLEC 1514

The Court approved the modification because the parties' s 34 Agreement proposed a decision the Court could make in the proper exercise of its functions: the amended development remained substantially the same as the originally approved development, had minimal environmental impact, relevant jurisdictional requirements and planning considerations were satisfied, the agreed conditions were lawful, and no contravention of the Environmental Planning and Assessment Act 1979, the Environmental Planning and Assessment Regulation 2021 or any environmental planning instrument was identified.

Jurisdiction
Australia
Judgment Date
12 September 2023
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Modification Application DA 392/2020/a Lodged With the Respondent on 21 December 2022, Seeking to Modify Development Consent DA 392/2020 Pursuant to S 4.55(1 A) of the Environmental Planning and Assessment Act 1979. / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Final Amended S 34 Agreement Filed on 30 August 2023.
Outcome
Appeal upheld; Modification Application DA-392/2022/A approved subject to conditions of consent in Annexure A.
Legal Topics
['modification Application' 'deemed Refusal Appeal' 'conciliation Conference' 'section 34 Agreement' 'subdivision' 'deferred Commencement Conditions' 'bushfire Prone Land' 'biodiversity' 'contamination' 'public Utility Infrastructure']
['environmental Planning and Assessment' 'land and Environment' 'development Consent Modification'] ['modification Application' 'deemed Refusal Appeal' 'conciliation Conference' 'section 34 Agreement' 'subdivision' 'deferred Commencement Conditions' 'bushfire Prone Land' 'biodiversity' 'contamination' 'public Utility Infrastructure']

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Modification Application DA 392/2020/a Lodged With the Respondent on 21 December 2022, Seeking to Modify Development Consent DA 392/2020 Pursuant to S 4.55(1 A) of the Environmental Planning and Assessment Act 1979. / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Final Amended S 34 Agreement Filed on 30 August 2023.

Legal Issues

  1. 1 ['Whether the Court could approve the modification application under s 4.55(1A) of the Environmental Planning and Assessment Act 1979.' 'Whether the development as modified would be substantially the same development as the development for which consent was originally granted.' 'Whether the modification would have minimal environmental impact.' 'Whether relevant statutory and environmental planning instrument requirements, including notification, submissions, bushfire, contamination, biodiversity, zoning, lot size, density, heritage and infrastructure considerations, were satisfied.' "Whether the parties' agreed decision was a decision the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979."]

Ratio Decidendi

The Court approved the modification because the parties' s 34 Agreement proposed a decision the Court could make in the proper exercise of its functions: the amended development remained substantially the same as the originally approved development, had minimal environmental impact, relevant jurisdictional requirements and planning considerations were satisfied, the agreed conditions were lawful, and no contravention of the Environmental Planning and Assessment Act 1979, the Environmental Planning and Assessment Regulation 2021 or any environmental planning instrument was identified.

Court Disposition

Appeal upheld; Modification Application DA-392/2022/A approved subject to conditions of consent in Annexure A.

Orders

  • ['The appeal is upheld.' 'Modification Application DA-392/2022/A is approved in accordance with Plan of Proposed Subdivision by North Western Surveys, Plan 1 of 5 dated 11 May 2022, to modify the existing conditions in development consent DA-392/2020 including reduced earthworks and removal of works from non-bio...