Darwich v Cumberland Council [2024] NSWLEC 1183

Darwich v Cumberland Council [2024] NSWLEC 1183

Because the parties reached agreement following the s 34 conciliation conference, the amended development application satisfied the relevant jurisdictional prerequisites, the development was capable of approval having regard to s 4.15(1)(b)-(e) of the Environmental Planning and Assessment Act 1979 and was in the public interest, the 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 therefore required the Court to dispose of the proceedings in accordance with that agreement and grant development consent, with costs thrown away by the amendment payable by the applicant.

Jurisdiction
Australia
Judgment Date
16 April 2024
Procedural Posture
Class 1 Development Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 2022/0393 / Final Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; development consent granted subject to conditions; applicant ordered to pay respondent's agreed thrown-away costs.
Legal Topics
['development Appeal' 'section 34 Conciliation Conference' 'jurisdictional Prerequisites for Development Consent' 'amended Development Application' 'costs Thrown Away by Amendment' 'residential Development']
['planning and Environment' 'development Consent' 'land and Environment Court Procedure'] ['development Appeal' 'section 34 Conciliation Conference' 'jurisdictional Prerequisites for Development Consent' 'amended Development Application' 'costs Thrown Away by Amendment' 'residential Development']

Case Brief

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Procedural Posture

Class 1 Development Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 2022/0393 / Final Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["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 jurisdictional prerequisites for granting development consent to the amended development application under s 4.16 of the Environmental Planning and Assessment Act 1979 were satisfied.' "Whether the applicant should pay the respondent's costs thrown away as a result of amendment of the development application."]

Ratio Decidendi

Because the parties reached agreement following the s 34 conciliation conference, the amended development application satisfied the relevant jurisdictional prerequisites, the development was capable of approval having regard to s 4.15(1)(b)-(e) of the Environmental Planning and Assessment Act 1979 and was in the public interest, the 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 therefore required the Court to dispose of the proceedings in accordance with that agreement and grant development consent, with costs thrown away by the amendment payable by the applicant.

Court Disposition

Appeal upheld; development consent granted subject to conditions; applicant ordered to pay respondent's agreed thrown-away costs.

Orders

  • ['Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the development application, agreed in the sum of $3,000.00 within 28 days of this order.' 'The appeal is upheld.' 'Development...