Kennedy v Mosman Municipal Council [2021] NSWLEC 1379

Kennedy v Mosman Municipal Council [2021] NSWLEC 1379

The parties satisfied the relevant jurisdictional prerequisites for modifying a development consent under s 4.55(2) of the Environmental Planning and Assessment Act 1979, and the agreed modifications to certain conditions of consent were ones the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979. As such, the appeal was allowed in part and refused in part, and the conditions modified in accordance with the agreement.

Parties
First Applicant: Andrew Joseph Kennedy; Second Applicant: Claudia Edwina Kennedy; Respondent: Mosman Municipal Council
Jurisdiction
Australia
Judgment Date
29 June 2021
Procedural Posture
Development Appeal / Conciliation Conference and Final Orders
Outcome
Appeal allowed in part and refused in part; development consent modified in accordance with detailed orders.
Legal Topics
Development Consent Modification, Appeal Against Consent Conditions, Conciliation Conference, Residential Development
Planning and Environment Development Consent Modification Appeal Against Consent Conditions Conciliation Conference Residential Development

Case Brief

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Parties

Andrew Joseph Kennedy

First Applicant

Claudia Edwina Kennedy

Second Applicant

Mosman Municipal Council

Respondent

Procedural Posture

Development Appeal / Conciliation Conference and Final Orders

Legal Issues

  1. 1 Whether the jurisdictional prerequisites for modification under s 4.55(2) of the Environmental Planning and Assessment Act 1979 were met
  2. 2 Whether the appeal against specific conditions of consent should be upheld or refused

Ratio Decidendi

The parties satisfied the relevant jurisdictional prerequisites for modifying a development consent under s 4.55(2) of the Environmental Planning and Assessment Act 1979, and the agreed modifications to certain conditions of consent were ones the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979. As such, the appeal was allowed in part and refused in part, and the conditions modified in accordance with the agreement.

Court Disposition

Appeal allowed in part and refused in part; development consent modified in accordance with detailed orders.

Orders

  • The appeal be allowed in part and refused in part.
  • Development consent to DA 8.2019.17.1 for alterations and additions to a dwelling house at 5 Amaroo Crescent, Mosman be modified as follows: