Parseh Cronulla Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1248

Parseh Cronulla Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1248

The Court was satisfied that the parties' agreed decision was one the Court could have made in the proper exercise of its functions because the modified development remained substantially the same as the approved residential flat building, the relevant s 4.55 jurisdictional prerequisites were satisfied, relevant planning instruments and matters under s 4.15(1) had been considered, and the required BASIX certificate and Design Verification Statement had been provided. Accordingly, s 34(3) required the Court to dispose of the proceedings in accordance with the parties' decision.

Jurisdiction
Australia
Judgment Date
14 May 2021
Procedural Posture
Class 1 Development Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of a Modification Application / Orders Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; Modification Application MA20/0237 approved; development consent DA18/0504 modified subject to amended conditions.
Legal Topics
['modification of Development Consent' 'substantially the Same Development' 'residential Flat Building' 'conciliation Conference' 'agreement Between Parties' 'jurisdictional Prerequisites Under S 4.55 of the Environmental Planning and Assessment Act 1979']
['planning and Environment Law' 'development Consent Modification'] ['modification of Development Consent' 'substantially the Same Development' 'residential Flat Building' 'conciliation Conference' 'agreement Between Parties' 'jurisdictional Prerequisites Under S 4.55 of the Environmental Planning and Assessment Act 1979']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether Modification Application MA20/0237 would result in substantially the same development as the development for which consent DA18/0504 was originally granted.' 'Whether the jurisdictional prerequisites in s 4.55(2) and s 4.55(3) of the Environmental Planning and Assessment Act 1979 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 parties' agreed decision was one the Court could have made in the proper exercise of its functions because the modified development remained substantially the same as the approved residential flat building, the relevant s 4.55 jurisdictional prerequisites were satisfied, relevant planning instruments and matters under s 4.15(1) had been considered, and the required BASIX certificate and Design Verification Statement had been provided. Accordingly, s 34(3) required the Court to dispose of the proceedings in accordance with the parties' decision.

Court Disposition

Appeal upheld; Modification Application MA20/0237 approved; development consent DA18/0504 modified subject to amended conditions.

Orders

  • ['The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the amended conditions at annexure "A".' 'The appeal is upheld.' 'Modification Application MA20/0237 for alterations and additions to the approved residential flat building at 3-5 Parramatta Street,...