Bloom v Ku ring gai Council [2019] NSWLEC 1072

Bloom v Ku ring gai Council [2019] NSWLEC 1072

Because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979, the Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions, the modified development was substantially the same as the originally approved development, relevant matters under s 4.15(1) of the Environmental Planning and Assessment Act 1979 had been considered, and no jurisdictional impediment was identified, the Court was required to dispose of the proceedings in accordance with the parties' agreement by upholding the appeal and approving the modification application subject to conditions.

Jurisdiction
Australia
Judgment Date
18 February 2019
Procedural Posture
Class 1 Appeal Concerning a Modification Application and Development Consent Conditions / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Agreed Orders
Outcome
Appeal upheld; Modification Application MOD0054/18 approved subject to conditions set out in Annexure A.
Legal Topics
['modification Application' 'development Consent Conditions' 'residential Dwelling' 'conciliation Conference' 'agreement Between the Parties']
['planning and Environment Law'] ['modification Application' 'development Consent Conditions' 'residential Dwelling' 'conciliation Conference' 'agreement Between the Parties']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning a Modification Application and Development Consent Conditions / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Agreed Orders

Legal Issues

  1. 1 ['Whether the Court should uphold the appeal against conditions imposed by the consent authority on the modification application.' 'Whether the agreed decision to approve Modification Application MOD0054/18 subject to conditions was one the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.' 'Whether the development as modified was substantially the same development as the development for which consent was originally granted.']

Ratio Decidendi

Because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979, the Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions, the modified development was substantially the same as the originally approved development, relevant matters under s 4.15(1) of the Environmental Planning and Assessment Act 1979 had been considered, and no jurisdictional impediment was identified, the Court was required to dispose of the proceedings in accordance with the parties' agreement by upholding the appeal and approving the modification application subject to conditions.

Court Disposition

Appeal upheld; Modification Application MOD0054/18 approved subject to conditions set out in Annexure A.

Orders

  • ['Leave is granted to the Applicant to amend Modification Application MOD0054/18 the subject of these proceedings to rely on DWG DA.01 Site + Ground floor plan, Level 1 prepared by Ken Powell Architect, Rev F, Dated 14 February 2019 and DWG DA.02 Elevations and Sections prepared by Ken Powell Architect, Rev F, Dated...