Primus DMS Pty Ltd v Bayside Council [2024] NSWLEC 1272

Primus DMS Pty Ltd v Bayside Council [2024] NSWLEC 1272

The Court was satisfied, on the basis of the agreed jurisdictional statement and the evidence before it, that the proposed modifications would result in development substantially the same as the original development, that the relevant notification, design verification, BASIX and planning instrument requirements were met, and that the parties' agreed decision was one the Court could have made in the proper exercise of its functions. Accordingly, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with the parties' decision.

Jurisdiction
Australia
Judgment Date
28 May 2024
Procedural Posture
Class 1 Development Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Modification Application MDA No. 2022/141 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
The appeal is upheld and Development Consent DA-2017/1243 is modified.
Legal Topics
['modification Application' 'shop Top Housing' 'development Consent' 'deemed Refusal' 'conciliation Conference' 'jurisdictional Prerequisites']
['planning and Environment Law'] ['modification Application' 'shop Top Housing' 'development Consent' 'deemed Refusal' 'conciliation Conference' 'jurisdictional Prerequisites']

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Procedural Posture

Class 1 Development Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Modification Application MDA No. 2022/141 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision was a decision that 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 jurisdictional prerequisites for modification of Development Consent DA-2017/1243 under s 4.56 of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the proposed modified development was substantially the same as the original development.' 'Whether the amended application satisfied notification, design verification, BASIX and relevant planning instrument requirements.']

Ratio Decidendi

The Court was satisfied, on the basis of the agreed jurisdictional statement and the evidence before it, that the proposed modifications would result in development substantially the same as the original development, that the relevant notification, design verification, BASIX and planning instrument requirements were met, and that the parties' agreed decision was one the Court could have made in the proper exercise of its functions. Accordingly, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with the parties' decision.

Court Disposition

The appeal is upheld and Development Consent DA-2017/1243 is modified.

Orders

  • ['The appeal is upheld.' 'Development Consent DA-2017/1243 is modified in the terms at Annexure A.' 'Development Consent DA-2017/1243 as modified by the Court is at Annexure B.']