Down and Messis v Penrith City Council [2023] NSWLEC 1038

Down and Messis v Penrith City Council [2023] NSWLEC 1038

Because s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 empowered the Court to modify the development control order, the agreed modification was a decision the Court could make in the proper exercise of its functions. Having reached that satisfaction under s 34(3) of the Land and Environment Court Act 1979, the Court was required to dispose of the proceedings in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
02 February 2023
Procedural Posture
Class 1 Appeal Against a Development Control Order / Orders Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development control order modified in accordance with Annexure A.
Legal Topics
['development Control Order' 'demolish Works Order' 'pergola Erected Without Planning Approval' 'exempt Development' 'conciliation Conference' 'modification of Order']
['planning and Environment Law'] ['development Control Order' 'demolish Works Order' 'pergola Erected Without Planning Approval' 'exempt Development' 'conciliation Conference' 'modification of Order']

Case Brief

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Procedural Posture

Class 1 Appeal Against a Development Control Order / Orders Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the development control order requiring demolition of the pergola should be modified in accordance with the parties' agreement." 'Whether the Court had power to modify the development control order on appeal under s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979.' 'Whether the agreed decision was one the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.']

Ratio Decidendi

Because s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 empowered the Court to modify the development control order, the agreed modification was a decision the Court could make in the proper exercise of its functions. Having reached that satisfaction under s 34(3) of the Land and Environment Court Act 1979, the Court was required to dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

Appeal upheld; development control order modified in accordance with Annexure A.

Orders

  • ['The Appeal is upheld.' 'Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order given by the Council to the Applicants on 22 July 2022 is modified as set out in the amended development control order at Annexure A.']