Weiner v Waverley Council [2022] NSWLEC 1233

Weiner v Waverley Council [2022] NSWLEC 1233

The Court upheld the appeal and modified the development consent because the parties reached an agreement under s 34(3), the Commissioner was satisfied that the agreed decision was one the Court could make, the modified development was substantially the same as the originally approved development, the reduced rear setbacks did not change any essential element or cause significant built form change, the increases in bulk and floor space were minimal, there was no additional adverse impact on neighbouring properties, and the notification requirements had been met with no submissions made.

Jurisdiction
Australia
Judgment Date
04 May 2022
Procedural Posture
Class 1 Appeal Concerning an Application to Modify a Development Consent / Conciliation Conference; Agreement Reached and Final Orders Made
Outcome
Appeal upheld; Development Consent No. DA-305/2017 modified.
Legal Topics
['modification Application Under S 4.55(2) of the Environmental Planning and Assessment Act 1979' 'class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979' 'conciliation Conference Agreement Under S 34 of the Land and Environment Court Act 1979' 'rear Setbacks for Dual Occupancy Development']
['planning and Environment Law' 'development Consent Modification'] ['modification Application Under S 4.55(2) of the Environmental Planning and Assessment Act 1979' 'class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979' 'conciliation Conference Agreement Under S 34 of the Land and Environment Court Act 1979' 'rear Setbacks for Dual Occupancy Development']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning an Application to Modify a Development Consent / Conciliation Conference; Agreement Reached and Final Orders Made

Legal Issues

  1. 1 ["Whether the Court could make orders giving effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the proposed modified development was substantially the same development as that originally approved for the purposes of s 4.55(2) of the Environmental Planning and Assessment Act 1979.' 'Whether the notification requirements of s 4.55(2)(c) of the Environmental Planning and Assessment Act 1979 had been met.']

Ratio Decidendi

The Court upheld the appeal and modified the development consent because the parties reached an agreement under s 34(3), the Commissioner was satisfied that the agreed decision was one the Court could make, the modified development was substantially the same as the originally approved development, the reduced rear setbacks did not change any essential element or cause significant built form change, the increases in bulk and floor space were minimal, there was no additional adverse impact on neighbouring properties, and the notification requirements had been met with no submissions made.

Court Disposition

Appeal upheld; Development Consent No. DA-305/2017 modified.

Orders

  • ['The appeal is upheld.' 'Development Consent No. DA-305/2017 is modified in the terms in Annexure A.' 'Development Consent No. DA-305/2017 as modified by the Court is Annexure B.']