Schonell v Mosman Municipal Council [2023] NSWLEC 1154

Schonell v Mosman Municipal Council [2023] NSWLEC 1154

Because the parties agreed, and the material before the Court showed, that the amended modification would result in development substantially the same as the originally approved development, that notification requirements had been met, and that the agreed decision was one the Court could make in the proper exercise of its functions, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
04 April 2023
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application Made Pursuant to S 4.55(2) / Orders Following Conciliation Conference Under S 34 Aa(2) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
The appeal was upheld and Modification Application No 8.2021.278.2, as amended, was approved.
Legal Topics
['modification Application' 'dwelling House and Ancillary Structures' 'conciliation Conference' 'agreement Between the Parties' 'substantially the Same Development' 'development Consent Conditions']
['planning and Environment' 'development Consent Modification'] ['modification Application' 'dwelling House and Ancillary Structures' 'conciliation Conference' 'agreement Between the Parties' 'substantially the Same Development' 'development Consent Conditions']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the development to which the consent as modified relates is substantially the same as the development for which consent was originally granted.' 'Whether notification requirements for the s 4.55 Modification Application had been met.' "Whether the parties' agreed decision was one that 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

Because the parties agreed, and the material before the Court showed, that the amended modification would result in development substantially the same as the originally approved development, that notification requirements had been met, and that the agreed decision was one the Court could make in the proper exercise of its functions, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

The appeal was upheld and Modification Application No 8.2021.278.2, as amended, was approved.

Orders

  • ['The Appeal is upheld.' 'Modification Application No 8.2021.278.2 (as amended) for modification of the approved pool and adjoining lawn area, the addition of a gym, bathroom, sauna, external stair and new window to Bathroom 2 and associated works at Lot 2 in DP 1272943, known as 21 Parriwi Road Mosman, is approved...