Gardiner v Inner West Council [2021] NSWLEC 1724

Gardiner v Inner West Council [2021] NSWLEC 1724

The Court upheld the appeal and modified the development consent because the parties' agreed decision was one the Court could have made: the proposed amendments were very minor, did not materially change the essence of the approved development, the modified development was substantially the same as the original development, and no jurisdictional impediment was identified.

Jurisdiction
Australia
Judgment Date
25 November 2021
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of Modification Application Mod/2021/0028 Under S 4.55(2) / Conciliation Conference Agreement and Final Orders
Outcome
Appeal upheld; Development Consent DA/2020/0624 modified.
Legal Topics
['modification of Development Consent' 'deferred Commencement Conditions' 'subdivision and Dwelling Development' 'conciliation Agreement' 'substantially the Same Development']
['planning and Environment' 'development Consent Modification'] ['modification of Development Consent' 'deferred Commencement Conditions' 'subdivision and Dwelling Development' 'conciliation Agreement' 'substantially the Same Development']

Case Brief

Summary, issues, holding and outcome

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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 Modification Application Mod/2021/0028 Under S 4.55(2) / Conciliation Conference Agreement and Final Orders

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the modified development was substantially the same development as the originally approved development under s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether there was any jurisdictional impediment to making the agreed orders.']

Ratio Decidendi

The Court upheld the appeal and modified the development consent because the parties' agreed decision was one the Court could have made: the proposed amendments were very minor, did not materially change the essence of the approved development, the modified development was substantially the same as the original development, and no jurisdictional impediment was identified.

Court Disposition

Appeal upheld; Development Consent DA/2020/0624 modified.

Orders

  • ['The appeal is upheld.' 'Development Consent DA/2020/0624 as modified by amending deferred commencement conditions A and B; conditions 1, 13A, 13B, 19 and 41 in the terms set out in Annexure "A".' 'The Court notes that Development Consent No. DA/2020/0624 as modified by the Court is set out at Annexure "B".']