Heller v Northern Beaches Council [2022] NSWLEC 1693

Heller v Northern Beaches Council [2022] NSWLEC 1693

The Court was satisfied that the modified development remained substantially the same as the approved alterations and additions to the dwelling house, that no concurrence requirements arose, that notification and submissions had been considered, and that relevant s 4.15(1) matters did not weigh against the agreed outcome. Because the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
13 December 2022
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of a Modification Application Made Pursuant to S 4.55 of the Environmental Planning and Assessment Act 1979 / Mandatory Conciliation Conference Under S 34 Aa(2)(a) of the Land and Environment Court Act 1979; Agreement Between the Parties as to Orders
Outcome
Appeal upheld; Development Consent No. DA2021/1790 modified in the terms in Annexure A, with the modified consent in Annexure B.
Legal Topics
['modification Application' 'development Consent' 'deemed Refusal Appeal' 'conciliation Conference' 'agreement Between Parties' 'jurisdictional Prerequisites']
['environmental Planning and Assessment' 'land and Environment Court Proceedings'] ['modification Application' 'development Consent' 'deemed Refusal Appeal' 'conciliation Conference' 'agreement Between Parties' 'jurisdictional Prerequisites']

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 Deemed Refusal of a Modification Application Made Pursuant to S 4.55 of the Environmental Planning and Assessment Act 1979 / Mandatory Conciliation Conference Under S 34 Aa(2)(a) of the Land and Environment Court Act 1979; Agreement Between the Parties as to Orders

Legal Issues

  1. 1 ["Whether the parties' agreed decision was a decision 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." 'Whether the jurisdictional prerequisites for modifying Development Consent No. DA2021/1790 under s 4.55 of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the development as modified was substantially the same development as the development for which consent was originally granted.' 'Whether notification, submissions, relevant planning considerations and the public interest supported the agreed modification.']

Ratio Decidendi

The Court was satisfied that the modified development remained substantially the same as the approved alterations and additions to the dwelling house, that no concurrence requirements arose, that notification and submissions had been considered, and that relevant s 4.15(1) matters did not weigh against the agreed outcome. Because the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement.

Court Disposition

Appeal upheld; Development Consent No. DA2021/1790 modified in the terms in Annexure A, with the modified consent in Annexure B.

Orders

  • ['The appeal is upheld.' 'Development Consent No. DA2021/1790 for alterations and additions to a dwelling house, including a swimming pool and garage at Lot 41 in Deposited Plan 13760, known as 214 Hudson Parade, Clareville, is modified in the terms in Annexure A.' 'Development Consent No. DA2021/1790 as modified by...