Jacob v Woollahra Municipal Council [2023] NSWLEC 1501

Jacob v Woollahra Municipal Council [2023] NSWLEC 1501

The Court was satisfied that the parties' agreed decision was one the Court could make in the proper exercise of its functions because the applicant was the registered proprietor, dwelling houses were permissible with consent in the R2 Low Density Residential zone, the amended proposal breached no development standard identified in WLEP 2014, the modified development was substantially the same as the originally approved development, notification and submissions had been addressed, relevant s 4.15 matters and the reasons for the original consent had been considered, and relevant BASIX and State Environmental Planning Policy requirements were satisfied. The Court was therefore required by s...

Jurisdiction
Australia
Judgment Date
05 September 2023
Procedural Posture
Class 1 Development Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 / Orders Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; modification application approved subject to modified conditions of consent.
Legal Topics
['modification Application' 'development Consent' 'deemed Refusal' 'conciliation Conference' 'substantially the Same Development' 'residential Development']
['planning and Environment Law' 'development Appeals'] ['modification Application' 'development Consent' 'deemed Refusal' 'conciliation Conference' 'substantially the Same Development' 'residential Development']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Class 1 Development Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 / Orders Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the agreed decision approving the Amended Modification Application was a decision 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 development as modified by the Amended Modification Application was substantially the same development as the development for which the Original Consent was granted for the purposes of s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether the relevant notification, submissions, planning controls, environmental planning instruments and assessment matters were addressed for the Amended Modification Application.']

Ratio Decidendi

The Court was satisfied that the parties' agreed decision was one the Court could make in the proper exercise of its functions because the applicant was the registered proprietor, dwelling houses were permissible with consent in the R2 Low Density Residential zone, the amended proposal breached no development standard identified in WLEP 2014, the modified development was substantially the same as the originally approved development, notification and submissions had been addressed, relevant s 4.15 matters and the reasons for the original consent had been considered, and relevant BASIX and State Environmental Planning Policy requirements were satisfied. The Court was therefore required by s...

Court Disposition

Appeal upheld; modification application approved subject to modified conditions of consent.

Orders

  • ['The appeal is upheld.' 'Modification application DA353/2021/2 (as amended), for modifications to Development Consent DA353/2021/1 including modification of Conditions A.3, C.2, C.4, H.1 and I.1 and the deletion of the Conditions C.2(a), (b), (c) and (d) of the conditions of consent, at 36 Beresford Road, Rose Bay,...