Primus DMS Pty Ltd v Bayside Council [2023] NSWLEC 1624

Primus DMS Pty Ltd v Bayside Council [2023] NSWLEC 1624

The proposed modifications do not alter the development such that it is no longer 'substantially the same' as the original consent, and all jurisdictional prerequisites for making the consent orders are satisfied; therefore, the Court is required to make orders in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
24 October 2023
Procedural Posture
Appeal (class 1) Modification Application / Final Orders Following Conciliation and Agreement
Outcome
Appeal upheld; modification application approved; costs order made.
Legal Topics
['modification of Development Consent' 'section 4.55 Applications' 'conciliation Conference' 'jurisdictional Prerequisites']
['planning Law' 'environmental Law'] ['modification of Development Consent' 'section 4.55 Applications' 'conciliation Conference' 'jurisdictional Prerequisites']

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Procedural Posture

Appeal (class 1) Modification Application / Final Orders Following Conciliation and Agreement

Legal Issues

  1. 1 ["Whether the proposed modification results in development 'substantially the same' as originally approved" 'Whether jurisdictional prerequisites for modification and consent orders are satisfied']

Ratio Decidendi

The proposed modifications do not alter the development such that it is no longer 'substantially the same' as the original consent, and all jurisdictional prerequisites for making the consent orders are satisfied; therefore, the Court is required to make orders in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Appeal upheld; modification application approved; costs order made.

Orders

  • ['The appeal is upheld.' "The Modification Application to modify Development Consent DA-2019/352 is approved and the consent is modified as set out in Annexure 'A'." "Development Consent DA-2019/352, as modified, is subject to consolidated conditions in Annexure 'B'." "The applicant is to pay the respondent's costs...