MYGA Investments Pty Limited v Waverley Council (No 3) [2022] NSWLEC 1366

MYGA Investments Pty Limited v Waverley Council (No 3) [2022] NSWLEC 1366

The Court was satisfied that the modified development would be quantitatively and qualitatively substantially the same as the originally approved development, that no concurrence or consultation was required, that notification requirements had been met with no objector submissions, and that relevant s 4.15(1) matters and the reasons for the original consent had been considered. Because the jurisdictional pre-requisites were met and the agreed outcome was one the Court could have made, s 34(3) required the Court to dispose of the proceedings in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
12 July 2022
Procedural Posture
Class 1 Modification Application Appeal / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Agreement Between the Parties; Final Orders
Outcome
Appeal upheld; modification application approved subject to conditions.
Legal Topics
['modification of Development Consent' 'conciliation Conference' 'agreement Between Parties' 'jurisdictional Pre Requisites' 'substantially the Same Development']
['environmental Planning and Assessment' 'land and Environment Court Procedure'] ['modification of Development Consent' 'conciliation Conference' 'agreement Between Parties' 'jurisdictional Pre Requisites' 'substantially the Same Development']

Case Brief

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Procedural Posture

Class 1 Modification Application Appeal / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Agreement Between the Parties; Final Orders

Legal Issues

  1. 1 ['Whether modification application No. DA-7/2021/A satisfied the jurisdictional pre-requisites for modification of development consent No. DA-7/2021 under s 4.55 of the Environmental Planning and Assessment Act 1979.' "Whether the parties' agreed decision was one 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."]

Ratio Decidendi

The Court was satisfied that the modified development would be quantitatively and qualitatively substantially the same as the originally approved development, that no concurrence or consultation was required, that notification requirements had been met with no objector submissions, and that relevant s 4.15(1) matters and the reasons for the original consent had been considered. Because the jurisdictional pre-requisites were met and the agreed outcome was one the Court could have made, s 34(3) required the Court to dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

Appeal upheld; modification application approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'Modification application No. DA-7/2021/A to modify development consent No. DA-7/2021 seeking modifications to allow for the relocation of the air conditioning units, internal reconfigurations, external reconfigurations, and minor changes to landscaping at 2 Princess Street, Rose Bay, is...