Northcote Development Company Pty Ltd v Willoughby City Council [2023] NSWLEC 1784

Northcote Development Company Pty Ltd v Willoughby City Council [2023] NSWLEC 1784

Because the parties reached agreement, Council's contentions were resolved, and the Court was satisfied that the statutory prerequisites for modification were met, including that the modified development was substantially the same as the approved development and that required notification, consultation, design and BASIX matters had been addressed, the parties' agreed decision was one the Court could make in the proper exercise of its functions. The Court was therefore required to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
21 December 2023
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Modification Application DA 2021/230/a / Orders Made Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; Modification Application 2021/230/A approved subject to consolidated conditions in Annexure A.
Legal Topics
['modification Application' 'shop Top Housing' 'residential Flat Building' 'conciliation Conference' 'deemed Refusal' 'substantially the Same Development' 'conditions of Consent']
['planning and Environment Law' 'development Consent Modification'] ['modification Application' 'shop Top Housing' 'residential Flat Building' 'conciliation Conference' 'deemed Refusal' 'substantially the Same Development' 'conditions of Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Modification Application DA 2021/230/a / Orders Made Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ['Whether the Court could make the agreed decision to uphold the appeal and approve Modification Application DA 2021/230/A subject to conditions under s 34(3) of the Land and Environment Court Act 1979.' 'Whether the jurisdictional prerequisites for modification under s 4.55(2) of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the development as modified would be substantially the same as the approved development.' 'Whether notification, consultation, and relevant assessment requirements under the Environmental Planning and Assessment Act 1979 and Environmental Planning and Assessment Regulation 2021 were satisfied.']

Ratio Decidendi

Because the parties reached agreement, Council's contentions were resolved, and the Court was satisfied that the statutory prerequisites for modification were met, including that the modified development was substantially the same as the approved development and that required notification, consultation, design and BASIX matters had been addressed, the parties' agreed decision was one the Court could make in the proper exercise of its functions. The Court was therefore required to dispose of the proceedings in accordance with that agreement.

Court Disposition

Appeal upheld; Modification Application 2021/230/A approved subject to consolidated conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Modification Application 2021/230/A, seeking to modify the built form and layout of the residential component of the shop top housing development approved by DA 2021/230, in relation to the property at 2-6 Northcote Street Naremburn (Lot 1 in DP 746018; Lots 1 and 2 in DP 801523; and Lots 2...