R N B Property Group v Waverley Council [2024] NSWLEC 1259

R N B Property Group v Waverley Council [2024] NSWLEC 1259

The Court approved the modification application because the parties reached an agreement under s 34(3), and the Commissioner was satisfied the agreed decision was one the Court could make in the proper exercise of its functions: the modification was substantially the same development as originally approved, involved only minor ground floor alterations within the approved building envelope with marginal additional floor space and minimal additional adverse impact, notification and submissions requirements were met, relevant planning controls and BASIX requirements were addressed, and the conditions captured the additional floor area in a Planning Agreement.

Jurisdiction
Australia
Judgment Date
17 May 2024
Procedural Posture
Class 1 Modification Application to Modify a Court Granted Development Consent for Shop Top Housing / Final Orders Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Application granted; Modification Application DA/296/2019/D approved.
Legal Topics
['modification of Development Consent' 'shop Top Housing' 'conciliation Conference Agreement' 'floor Space Ratio' 'basix Compliance' 'voluntary Planning Agreement']
['planning and Environment Law'] ['modification of Development Consent' 'shop Top Housing' 'conciliation Conference Agreement' 'floor Space Ratio' 'basix Compliance' 'voluntary Planning Agreement']

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Procedural Posture

Class 1 Modification Application to Modify a Court Granted Development Consent for Shop Top Housing / Final Orders Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the Court could approve Modification Application DA/296/2019/D under s 4.55(8) of the Environmental Planning and Assessment Act 1979 pursuant to s 4.55(2).' 'Whether the development as modified would be substantially the same development as originally approved.' 'Whether notification and consideration of submissions requirements under s 4.55(2)(c) and s 4.55(2)(d) of the Environmental Planning and Assessment Act 1979 were met.' 'Whether the agreed decision was one the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.']

Ratio Decidendi

The Court approved the modification application because the parties reached an agreement under s 34(3), and the Commissioner was satisfied the agreed decision was one the Court could make in the proper exercise of its functions: the modification was substantially the same development as originally approved, involved only minor ground floor alterations within the approved building envelope with marginal additional floor space and minimal additional adverse impact, notification and submissions requirements were met, relevant planning controls and BASIX requirements were addressed, and the conditions captured the additional floor area in a Planning Agreement.

Court Disposition

Application granted; Modification Application DA/296/2019/D approved.

Orders

  • ['The application is granted.' 'Pursuant to section 4.55(8) of the Environmental Planning and Assessment Act 1979, Modification Application DA/296/2019/D for amendment to the ground floor level including creation of an additional commercial space at 97 Glenayr Avenue Bondi Beach, NSW 2106 in the terms set out in...