Giang v Sutherland Shire Council [2020] NSWLEC 1634

Giang v Sutherland Shire Council [2020] NSWLEC 1634

Because the jurisdictional prerequisites for the modification application were satisfied and the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement by upholding the appeal and approving the modification application subject to conditions.

Jurisdiction
Australia
Judgment Date
14 December 2020
Procedural Posture
Class 1 Appeal Against Refusal of Modification Application Ma20/0019 / Orders Following S 34 Conciliation Conference Agreement
Outcome
Appeal upheld; modification application approved subject to conditions.
Legal Topics
['modification of Development Consent' 'development Standards' 'building Height' 'conciliation Conference' 'jurisdictional Prerequisites']
['planning and Environment' 'land and Environment Court Procedure'] ['modification of Development Consent' 'development Standards' 'building Height' 'conciliation Conference' 'jurisdictional Prerequisites']

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Procedural Posture

Class 1 Appeal Against Refusal of Modification Application Ma20/0019 / Orders Following S 34 Conciliation Conference Agreement

Legal Issues

  1. 1 ['Whether the modification application under s 4.55(2) of the Environmental Planning and Assessment Act 1979 satisfied the jurisdictional prerequisites for approval.' "Whether the parties' agreed decision was one 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 modification application MA20/0019 should be approved to increase the approved building height by 365mm.']

Ratio Decidendi

Because the jurisdictional prerequisites for the modification application were satisfied and the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement by upholding the appeal and approving the modification application subject to conditions.

Court Disposition

Appeal upheld; modification application approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'Modification application MA20/0019 seeking to modify development consent DA15/1196 to provide for an increase in building height by 365mm at 28 Sproule Road, Illawong, is approved subject to the conditions in Annexure A.']