Cheong v Sutherland Shire Council [2020] NSWLEC 1635

Cheong v Sutherland Shire Council [2020] NSWLEC 1635

The Court was satisfied that the relevant jurisdictional prerequisites for the modification application had been met, including that the modified development was substantially the same development, no further NSW Rural Fire Service referral was required, notification requirements were satisfied, no submissions were received, the further height breach did not engage cl 4.6 of Sutherland Shire Local Environmental Plan 2015 because of s 4.55(4), and no amended BASIX certificate was required. Because the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the...

Jurisdiction
Australia
Judgment Date
14 December 2020
Procedural Posture
Class 1 Appeal Concerning Modification Application Ma20/0054 Under S 4.55(2) of the Environmental Planning and Assessment Act 1979 / Orders Following S 34 Conciliation Conference Agreement
Outcome
Appeal upheld; modification application MA20/0054 approved subject to conditions in Annexure A.
Legal Topics
['modification Application' 'development Consent' 'conciliation Conference' 'jurisdictional Prerequisites' 'building Height Development Standard']
['planning and Environment Law'] ['modification Application' 'development Consent' 'conciliation Conference' 'jurisdictional Prerequisites' 'building Height Development Standard']

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Procedural Posture

Class 1 Appeal Concerning Modification Application Ma20/0054 Under S 4.55(2) of the Environmental Planning and Assessment Act 1979 / Orders Following S 34 Conciliation Conference Agreement

Legal Issues

  1. 1 ['Whether the jurisdictional prerequisites for modification of development consent DA15/1197 under s 4.55(2) of the Environmental Planning and Assessment Act 1979 were satisfied.' "Whether the parties' agreed decision 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 appeal should be upheld and modification application MA20/0054 approved subject to conditions.']

Ratio Decidendi

The Court was satisfied that the relevant jurisdictional prerequisites for the modification application had been met, including that the modified development was substantially the same development, no further NSW Rural Fire Service referral was required, notification requirements were satisfied, no submissions were received, the further height breach did not engage cl 4.6 of Sutherland Shire Local Environmental Plan 2015 because of s 4.55(4), and no amended BASIX certificate was required. Because the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the...

Court Disposition

Appeal upheld; modification application MA20/0054 approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Modification application MA20/0054 seeking to modify development consent DA15/1197 to provide for an increase in building height by 545mm at 30 Sproule Road, Illawong, is approved subject to the conditions in Annexure A.']