Smith v Mosman Municipal Council [2024] NSWLEC 1201

Smith v Mosman Municipal Council [2024] NSWLEC 1201

Because the parties' agreed decision to grant consent to the Amended Modification Application was one the Court could make in the proper exercise of its functions, including because the modified development was substantially the same as the originally approved development, notification was not required under the Mosman Community Participation Plan, owner consent and relevant planning controls had been addressed, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement.

Jurisdiction
Australia
Judgment Date
19 April 2024
Procedural Posture
Class 1 Development Appeal / Appeal Against Refusal of Modification Application Resolved by Agreement at Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Development Consent No.8.2022.41.1 modified in the terms at Annexure A and Development Consent No.8.2022.41.2 as modified by the Court set out in Annexure B.
Legal Topics
['modification Application Under S 4.56 of the Environmental Planning and Assessment Act 1979' 'class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979' 'section 34 Conciliation Agreement' 'occupation Certificates' 'mosman Local Environmental Plan 2012' 'heritage Impacts' 'residential Development']
['planning and Environment Law' 'development Consent Modification' 'land and Environment Court Procedure'] ['modification Application Under S 4.56 of the Environmental Planning and Assessment Act 1979' 'class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979' 'section 34 Conciliation Agreement' 'occupation Certificates' 'mosman Local Environmental Plan 2012' 'heritage Impacts' 'residential Development']

Case Brief

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Procedural Posture

Class 1 Development Appeal / Appeal Against Refusal of Modification Application Resolved by Agreement at Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could make orders giving effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the consent as modified would be substantially the same development as originally approved for the purposes of s 4.56(1)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether notification requirements under s 4.56(1)(b) of the Environmental Planning and Assessment Act 1979 were satisfied or not required.' 'Whether relevant planning controls and considerations, including the Mosman Local Environmental Plan 2012 and applicable State Environmental Planning Policies, were addressed for the Amended Modification Application.']

Ratio Decidendi

Because the parties' agreed decision to grant consent to the Amended Modification Application was one the Court could make in the proper exercise of its functions, including because the modified development was substantially the same as the originally approved development, notification was not required under the Mosman Community Participation Plan, owner consent and relevant planning controls had been addressed, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement.

Court Disposition

Appeal upheld; Development Consent No.8.2022.41.1 modified in the terms at Annexure A and Development Consent No.8.2022.41.2 as modified by the Court set out in Annexure B.

Orders

  • ['The applicant is directed to file the amended modification application the subject of Order (3) below within seven (7) days of the date of this order.' 'The appeal is upheld.' 'Development consent No.8.2022.41.1 is modified in the terms at Annexure A.' 'Development consent No.8.2022.41.2 as modified by the Court...