Loukis v Bayside Council [2020] NSWLEC 1175

Loukis v Bayside Council [2020] NSWLEC 1175

The Court was satisfied that the agreed amended proposal was substantially the same development as originally approved, had been notified with no submissions received, remained a permissible dual occupancy with secondary dwellings in the R3 Medium Density zone, raised no additional SEPP 55 remediation requirements, and was supported by BASIX Certificates. 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 proceedings to be disposed of in accordance with that decision.

Jurisdiction
Australia
Judgment Date
14 April 2020
Procedural Posture
Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a S 4.55(2) Modification Application / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; Modification Application no. DA-2017/523/B approved in accordance with Annexure A, with consolidated modified conditions in Annexure B.
Legal Topics
['section 4.55 Modification Application' 'secondary Dwellings' 'dual Occupancy' 'conciliation Conference' 'jurisdictional Prerequisites for Consent' 'basix' 'remediation of Land']
['planning and Environment Law' 'development Consent Modification'] ['section 4.55 Modification Application' 'secondary Dwellings' 'dual Occupancy' 'conciliation Conference' 'jurisdictional Prerequisites for Consent' 'basix' 'remediation of Land']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a S 4.55(2) Modification Application / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ['Whether the modification application would result in substantially the same development as originally approved and modified.' 'Whether notification requirements were satisfied and whether submissions were received.' 'Whether the modified development remained permissible with consent in the R3 Medium Density zone under Rockdale Local Environmental Plan 2011.' 'Whether State Environmental Planning Policy No 55—Remediation of Land imposed additional requirements for the modification application.' 'Whether BASIX certificate requirements were satisfied.' "Whether 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."]

Ratio Decidendi

The Court was satisfied that the agreed amended proposal was substantially the same development as originally approved, had been notified with no submissions received, remained a permissible dual occupancy with secondary dwellings in the R3 Medium Density zone, raised no additional SEPP 55 remediation requirements, and was supported by BASIX Certificates. 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 proceedings to be disposed of in accordance with that decision.

Court Disposition

Appeal upheld; Modification Application no. DA-2017/523/B approved in accordance with Annexure A, with consolidated modified conditions in Annexure B.

Orders

  • ['Leave is granted to the Applicant to rely upon the amended plans listed in the orders.' 'The appeal is upheld.' 'Modification Application no. DA-2017/523/B to modify the approved dual occupancy and secondary dwellings to create a two storey secondary dwelling to each dual occupancy with ground floor parking below...