Scape Constructions Pty. Limited v Central Coast Council [2019] NSWLEC 1399

Scape Constructions Pty. Limited v Central Coast Council [2019] NSWLEC 1399

Because the proposed deferral of the intersection upgrade would have minimal environmental impact, the approved 405 lot subdivision remained substantially the same development, notification and consideration of submissions had occurred, owner consent and other relevant planning matters were satisfied, and the parties' agreed decision was one the Court could have made, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement by upholding the appeal and granting the modification subject to amended conditions.

Jurisdiction
Australia
Judgment Date
27 August 2019
Procedural Posture
Class 1 Modification Application Appeal Concerning Development Consent / Orders Made Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; modification application approved by amending conditions of Development Consent No. DA/967/2013.
Legal Topics
['modification Application Under S 4.55(1 A) of the Environmental Planning and Assessment Act 1979' 'conciliation Conference Agreement' 'jurisdictional Prerequisites for Modification of Development Consent' 'subdivision Staging and Road Intersection Upgrade Conditions']
['environmental Planning and Assessment' 'land and Environment Court Proceedings' 'development Consent Modification'] ['modification Application Under S 4.55(1 A) of the Environmental Planning and Assessment Act 1979' 'conciliation Conference Agreement' 'jurisdictional Prerequisites for Modification of Development Consent' 'subdivision Staging and Road Intersection Upgrade Conditions']

Case Brief

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Procedural Posture

Class 1 Modification Application Appeal Concerning Development Consent / Orders Made Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ['Whether the proposed modification to defer the Pacific Highway / Kanangra Drive intersection upgrade from Stage 2 to Stage 4 was of minimal environmental impact under s 4.55(1A)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether the modified development was substantially the same development as originally approved.' 'Whether the modification application had been publicly notified and submissions considered.' "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

Because the proposed deferral of the intersection upgrade would have minimal environmental impact, the approved 405 lot subdivision remained substantially the same development, notification and consideration of submissions had occurred, owner consent and other relevant planning matters were satisfied, and the parties' agreed decision was one the Court could have made, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement by upholding the appeal and granting the modification subject to amended conditions.

Court Disposition

Appeal upheld; modification application approved by amending conditions of Development Consent No. DA/967/2013.

Orders

  • ['The Appeal is upheld.' 'Modification Application No. DA/967/2013/B to modify Development Consent No. DA/967/2013/C is determined by amending conditions 2, 19, 57, 58 and 59.' 'As a consequence of Order (2), Development Consent No. DA/967/2013 is now subject to the modified conditions of development consent set out...