Hunter v Northern Beaches Council [2021] NSWLEC 1093

Hunter v Northern Beaches Council [2021] NSWLEC 1093

The Court could make the agreed decision because the jurisdictional preconditions for modification were satisfied: the modified development would be substantially the same as the original Development Consent, and the proposal would not increase the impact on biodiversity values on the basis of the Biodiversity Assessment Report dated 8 February 2021. Accordingly, the proceedings were disposed of in accordance with the parties' agreement and the modification application was approved subject to conditions.

Jurisdiction
Australia
Judgment Date
24 February 2021
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against the Refusal of Modification Application No. Mod2019/0639 / Final Orders Following a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Modification Application No. MOD2019/0639 approved subject to the consolidated conditions of consent at Annexure A.
Legal Topics
['modification Application' 'deletion and Amendment of Conditions of Consent' 'conciliation Conference' 'agreement Between the Parties' 'jurisdictional Preconditions' 'area of Outstanding Biodiversity Value']
['planning and Environment' 'development Consent Modification' 'biodiversity Conservation'] ['modification Application' 'deletion and Amendment of Conditions of Consent' 'conciliation Conference' 'agreement Between the Parties' 'jurisdictional Preconditions' 'area of Outstanding Biodiversity Value']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against the Refusal of Modification Application No. Mod2019/0639 / Final Orders Following a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreed decision under s 34(3) of the Land and Environment Court Act 1979." 'Whether the preconditions to modify Development Consent 2018/2027 under s 4.55(2) of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the modified development would be substantially the same development as the development for which consent was originally granted.' 'Whether the proposal would increase the impact on biodiversity values for the purposes of s 7.17(2) of the Biodiversity Conservation Act 2016.']

Ratio Decidendi

The Court could make the agreed decision because the jurisdictional preconditions for modification were satisfied: the modified development would be substantially the same as the original Development Consent, and the proposal would not increase the impact on biodiversity values on the basis of the Biodiversity Assessment Report dated 8 February 2021. Accordingly, the proceedings were disposed of in accordance with the parties' agreement and the modification application was approved subject to conditions.

Court Disposition

Appeal upheld; Modification Application No. MOD2019/0639 approved subject to the consolidated conditions of consent at Annexure A.

Orders

  • ['The applicant is granted leave to amend the application to rely on the Biodiversity Assessment Report dated 8 February 2021.' 'The appeal is upheld.' 'Modification Application No. MOD2019/0639 to modify Development Consent 2018/2027 for alterations and additions to an existing dwelling house at 15 Addison Road,...