Pluim Commercial Contractors Pty Ltd trading as Pluim Group v Central Coast Council [2019] NSWLEC 1077

Pluim Commercial Contractors Pty Ltd trading as Pluim Group v Central Coast Council [2019] NSWLEC 1077

The Court upheld the appeal because the development consent had been lawfully commenced, the agreed modification deleting Condition 5 and substituting Conditions 5A and 5B would have minimal environmental impact, the modified development would be substantially the same development as originally approved, public submissions had been considered, and the parties' agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
27 February 2019
Procedural Posture
Class 1 Appeal Concerning a Modification Application to Modify Development Consent / Section 34 Conciliation Conference Agreement; Final Orders
Outcome
Appeal upheld; modification application approved by deleting Condition 5 and adding substitute Conditions 5A and 5B.
Legal Topics
['modification of Development Consent Under S 4.55(1 A) of the Environmental Planning and Assessment Act 1979' 'replacement of Condition Requiring a Property Vegetation Plan After Repeal of the Native Vegetation Act 2003' 'biodiversity Development Assessment Report and Retirement of Biodiversity Credits' 'section 34 Agreement in Land and Environment Court Proceedings' 'lawful Commencement of Development Consent']
['planning and Environment Law' 'development Consent Modification' 'biodiversity Conservation'] ['modification of Development Consent Under S 4.55(1 A) of the Environmental Planning and Assessment Act 1979' 'replacement of Condition Requiring a Property Vegetation Plan After Repeal of the Native Vegetation Act 2003' 'biodiversity Development Assessment Report and Retirement of Biodiversity Credits' 'section 34 Agreement in Land and Environment Court Proceedings' 'lawful Commencement of Development Consent']

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Procedural Posture

Class 1 Appeal Concerning a Modification Application to Modify Development Consent / Section 34 Conciliation Conference Agreement; Final Orders

Legal Issues

  1. 1 ['Whether the Court had jurisdiction to determine the appeal given the question whether the development consent had lawfully commenced before lapsing under s 4.53 of the Environmental Planning and Assessment Act 1979.' "Whether the parties' agreed decision to delete Condition 5 and substitute Conditions 5A and 5B 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 proposed modification under s 4.55(1A) of the Environmental Planning and Assessment Act 1979 would have minimal environmental impact and result in substantially the same development.' 'Whether public submissions concerning the proposed modification had been considered.']

Ratio Decidendi

The Court upheld the appeal because the development consent had been lawfully commenced, the agreed modification deleting Condition 5 and substituting Conditions 5A and 5B would have minimal environmental impact, the modified development would be substantially the same development as originally approved, public submissions had been considered, and the parties' agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Appeal upheld; modification application approved by deleting Condition 5 and adding substitute Conditions 5A and 5B.

Orders

  • ['The Appeal is upheld.' 'Modification Application No. DA/905/2013/C to modify Development Consent No. DA/905/2013/A is determined by approving the modifications as set out in Annexure "A" (being the deletion of Condition 5 and addition of substitute Conditions 5A and 5B).' 'As a consequence of Order (2),...