MH Development One Pty Ltd v Waverley Council [2023] NSWLEC 1072

MH Development One Pty Ltd v Waverley Council [2023] NSWLEC 1072

The Court was satisfied that the jurisdictional requirements for the modification application were met, including that the modified development was substantially the same as the originally approved development, that relevant s 4.15 matters had been considered, that required documentation including a qualified designer statement and BASIX certificate was provided, and that the parties' agreed decision was one the Court could make in the proper exercise of its functions; accordingly, s 34(3) required the Court to dispose of the proceedings in accordance with the agreement.

Jurisdiction
Australia
Judgment Date
22 February 2023
Procedural Posture
Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Following Deemed Refusal of Modification Application No DA 82/2016/e / Orders Made After Conciliation Conference and S 34 Agreement
Outcome
Appeal upheld; Development Consent No. DA-82/2016 modified.
Legal Topics
['modification Application' 'residential Flat Building' 'conciliation Conference' 'agreement Between Parties' 'development Standards' 'basix' 'qualified Designer Statement' 'voluntary Planning Agreement']
['planning and Environment' 'development Consent Modification'] ['modification Application' 'residential Flat Building' 'conciliation Conference' 'agreement Between Parties' 'development Standards' 'basix' 'qualified Designer Statement' 'voluntary Planning Agreement']

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Procedural Posture

Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Following Deemed Refusal of Modification Application No DA 82/2016/e / Orders Made After Conciliation Conference and S 34 Agreement

Legal Issues

  1. 1 ["Whether the parties' agreed decision was a decision 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 development as modified was substantially the same as the development for which consent was originally granted for the purposes of s 4.56 of the Environmental Planning and Assessment Act 1979.' 'Whether relevant jurisdictional requirements under the Environmental Planning and Assessment Act 1979, Environmental Planning and Assessment Regulation 2021, Waverley Local Environmental Plan 2012 and relevant State Environmental Planning Policies were satisfied.']

Ratio Decidendi

The Court was satisfied that the jurisdictional requirements for the modification application were met, including that the modified development was substantially the same as the originally approved development, that relevant s 4.15 matters had been considered, that required documentation including a qualified designer statement and BASIX certificate was provided, and that the parties' agreed decision was one the Court could make in the proper exercise of its functions; accordingly, s 34(3) required the Court to dispose of the proceedings in accordance with the agreement.

Court Disposition

Appeal upheld; Development Consent No. DA-82/2016 modified.

Orders

  • ['The appeal is upheld.' 'Development Consent No. DA-82/2016 is modified in the terms in Annexure A.' 'Development Consent No. DA-82/2016 as modified by the Court is Annexure B.']