Truland Development Pty Ltd v Georges River Council [2023] NSWLEC 1117

Truland Development Pty Ltd v Georges River Council [2023] NSWLEC 1117

The Court was satisfied that the agreed decision was one it could have made because the Modification was lodged and appealed by the owner within the applicable statutory framework, the site was zoned R4 High Density Residential and the modified residential flat building remained permissible, the modified development was substantially the same as the approved development, no concurrence consultation was required, notification and public interest matters were addressed, an amended BASIX certificate was filed, and the minor height exceedance and Level 6 changes did not amount to a radical transformation or materially change the character of the approved development.

Jurisdiction
Australia
Judgment Date
17 March 2023
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Modification Application MOD 2022/0075 / PAN 209172 / Orders Made Following S 34 Conciliation Conference Agreement
Outcome
Appeal upheld; Modification Application approved subject to conditions in Annexure A.
Legal Topics
['modification Application' 'residential Flat Building' 'development Consent' 'conciliation Conference' 'substantially the Same Development' 'building Height Development Standard']
['planning and Environment Law'] ['modification Application' 'residential Flat Building' 'development Consent' 'conciliation Conference' 'substantially the Same Development' 'building Height Development Standard']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Modification Application MOD 2022/0075 / PAN 209172 / Orders Made Following S 34 Conciliation Conference Agreement

Legal Issues

  1. 1 ["Whether the parties' agreed decision was one the Court could have made in the proper exercise of its functions under s 4.55(2) of the Environmental Planning and Assessment Act 1979 and s 34(3) of the Land and Environment Court Act 1979." 'Whether the development as modified was substantially the same development as the development for which consent was originally granted.' 'Whether the minor exceedance of the 21m height control by 1.465m was acceptable within the framework of s 4.55(2) and the Georges River Local Environmental Plan 2021.' 'Whether notification, concurrence, BASIX and public interest requirements were satisfied.']

Ratio Decidendi

The Court was satisfied that the agreed decision was one it could have made because the Modification was lodged and appealed by the owner within the applicable statutory framework, the site was zoned R4 High Density Residential and the modified residential flat building remained permissible, the modified development was substantially the same as the approved development, no concurrence consultation was required, notification and public interest matters were addressed, an amended BASIX certificate was filed, and the minor height exceedance and Level 6 changes did not amount to a radical transformation or materially change the character of the approved development.

Court Disposition

Appeal upheld; Modification Application approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'The Modification Application reference MOD 2022/0075 (and NSW Planning Portal reference PAN-209172) to modify Development Consent reference DA2021/0211 for the extension of the main lift core to access the approved Communal Open Space on Level 6, the deletion of the secondary lift...