Metrocorp Developments and Construction Pty Limited v Canterbury-Bankstown Council [2023] NSWLEC 1427

Metrocorp Developments and Construction Pty Limited v Canterbury-Bankstown Council [2023] NSWLEC 1427

The Court was satisfied that it had power to make the agreed orders because the jurisdictional preconditions were met: owners' consent was provided, the 2017 consent had not lapsed because its lapsing date was extended to 11 August 2024, the modified proposal was substantially the same development as originally approved, required notification and consideration of submissions had occurred, relevant s 4.15 matters and the original reasons for consent had been considered, and the height exceedance was acceptable in the circumstances. Accordingly, under s 34(3) of the Land and Environment Court Act 1979 the proceedings were disposed of in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
02 August 2023
Procedural Posture
Class 1 Modification Application Under S 4.55(8) of the Environmental Planning and Assessment Act 1979 / Orders Made Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Application approved; development consent DA256/2016 modified in accordance with the parties' agreement.
Legal Topics
['modification of Development Consent' 'conciliation Conference' 'agreement Between Parties' 'substantially the Same Development' 'building Height Exceedance' 'shop Top Housing']
['environmental Planning and Development' 'land and Environment Court Procedure'] ['modification of Development Consent' 'conciliation Conference' 'agreement Between Parties' 'substantially the Same Development' 'building Height Exceedance' 'shop Top Housing']

Case Brief

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Procedural Posture

Class 1 Modification Application Under S 4.55(8) of the Environmental Planning and Assessment Act 1979 / Orders Made Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision was a decision that 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 jurisdictional preconditions for modification of development consent DA256/2016 under s 4.55(2) of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the development as modified was substantially the same development as the development for which consent was originally granted.' 'Whether relevant matters under s 4.15(1) of the Environmental Planning and Assessment Act 1979 and the reasons for the original consent had been considered.' 'Whether the proposed increase in building height, exceeding the height control in cl 4.3 of the Canterbury Local Environmental Plan 2012, was acceptable in the modification application.']

Ratio Decidendi

The Court was satisfied that it had power to make the agreed orders because the jurisdictional preconditions were met: owners' consent was provided, the 2017 consent had not lapsed because its lapsing date was extended to 11 August 2024, the modified proposal was substantially the same development as originally approved, required notification and consideration of submissions had occurred, relevant s 4.15 matters and the original reasons for consent had been considered, and the height exceedance was acceptable in the circumstances. Accordingly, under s 34(3) of the Land and Environment Court Act 1979 the proceedings were disposed of in accordance with the parties' agreement.

Court Disposition

Application approved; development consent DA256/2016 modified in accordance with the parties' agreement.

Orders

  • ['The application is approved.' 'Development consent no. DA256/2016 is modified in the terms at Annexure A.' 'Development consent no. DA256/2016 as modified by the Court is at Annexure B.' 'The exhibits are retained.']