The Catering Group Pty Ltd v City of Parramatta Council [2023] NSWLEC 1136

The Catering Group Pty Ltd v City of Parramatta Council [2023] NSWLEC 1136

The Court was satisfied that each agreed decision was within its powers: the statutory basis for the stop use order was met because the applicant had used the premises contrary to conditions of development consent, s 8.18(4)(b) empowered the Court to modify the order, and the amended modification application...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
28 March 2023
Procedural Posture
Class 1 Appeals Concerning a Development Control Order and a Modification Application / Final Orders Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Both appeals were upheld; the development control order was modified; Modification Application DA/469/2016/B was approved; and development consent DA/469/2016 was modified.
Legal Topics
['development Control Order' 'stop Use Order' 'modification Application' 'mechanical Exhaust System' 'conciliation Conference' 'section 34 Agreement']
['planning and Environment' 'development Control' 'development Consent Modification'] ['development Control Order' 'stop Use Order' 'modification Application' 'mechanical Exhaust System' 'conciliation Conference' 'section 34 Agreement']

Source-derived case record

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Procedural Posture

Class 1 Appeals Concerning a Development Control Order and a Modification Application / Final Orders Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could make orders modifying the development control order in accordance with the parties' agreement." "Whether the Court could approve the modification application and modify development consent DA/469/2016 in accordance with the parties' agreement." 'Whether the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.']

Ratio Decidendi

The Court was satisfied that each agreed decision was within its powers: the statutory basis for the stop use order was met because the applicant had used the premises contrary to conditions of development consent, s 8.18(4)(b) empowered the Court to modify the order, and the amended modification application concerned only aspects of the mechanical exhaust system and did not alter any essential element of the development, so the development as modified was substantially the same as that originally approved.

Court Disposition

Both appeals were upheld; the development control order was modified; Modification Application DA/469/2016/B was approved; and development consent DA/469/2016 was modified.

Orders

  • ['In proceedings 2022/254072, the appeal is upheld.' 'In proceedings 2022/254072, the Development Control Order issued by the Respondent to the Applicant dated 29 July 2022 under s 9.35(1)(b) and Sch 5 of the Environmental Planning and Assessment Act 1979 (EPA Act) is, pursuant to s 8.18(4)(b) of the EPA Act,...