Ellis v Inner West Council [2019] NSWLEC 1542

Ellis v Inner West Council [2019] NSWLEC 1542

The parties reached an agreement at the conciliation conference to amend and approve the modification application. The Court was satisfied that the proposed modification was of minimal environmental impact, that the development as modified was substantially the same development, that notification had occurred for 14 days with no submissions received, and that the relevant s 4.15(1) matters and the Council's reasons had been considered. As there were no jurisdictional impediments and the 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...

Jurisdiction
Australia
Judgment Date
08 November 2019
Procedural Posture
Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against the Respondent's Determination of a Modification Application Made Pursuant to S 4.55(1 A) of the Environmental Planning and Assessment Act 1979 / Orders Made Following a Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; modification application approved subject to conditions.
Legal Topics
['modification Application' 'conciliation Conference' 'agreement Between the Parties' 'heritage Conservation Area' 'vergola Roof']
['planning and Environment' 'development Consent Modification'] ['modification Application' 'conciliation Conference' 'agreement Between the Parties' 'heritage Conservation Area' 'vergola Roof']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against the Respondent's Determination of a Modification Application Made Pursuant to S 4.55(1 A) of the Environmental Planning and Assessment Act 1979 / Orders Made Following a Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court should dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the proposed modification could be approved under s 4.55(1A) of the Environmental Planning and Assessment Act 1979.' "Whether the amended vergola proposal addressed Council's heritage concerns."]

Ratio Decidendi

The parties reached an agreement at the conciliation conference to amend and approve the modification application. The Court was satisfied that the proposed modification was of minimal environmental impact, that the development as modified was substantially the same development, that notification had occurred for 14 days with no submissions received, and that the relevant s 4.15(1) matters and the Council's reasons had been considered. As there were no jurisdictional impediments and the 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...

Court Disposition

Appeal upheld; modification application approved subject to conditions.

Orders

  • ['The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 3 of Annexure "A".' 'Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the parties agree that no costs are payable by the applicant.' 'The appeal is upheld.'...