UMA Centre Limited v Canterbury-Bankstown Council [2023] NSWLEC 1322

UMA Centre Limited v Canterbury-Bankstown Council [2023] NSWLEC 1322

The agreed modification was within the Court's power because the modification only encompassed Eid festivals through an updated Operational Plan of Management and consequential conditions, involved no change to approved built form or architectural plans, and therefore related to substantially the same development; notification produced no submissions. The parties' decision was therefore one the Court could have made under s 34(3) of the Land and Environment Court Act 1979. However, the Commissioner could not make the proposed costs order because r 3.10 of the Land and Environment Court Rules 2007 prevents a Commissioner exercising the general costs powers under s 98 of the Civil Procedure...

Jurisdiction
Australia
Judgment Date
22 June 2023
Procedural Posture
Class 1 Development Appeal; Application Pursuant to S 4.55(2) of the Environmental Planning and Assessment Act 1979 to Modify Development Consent Da/893/2020 / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; Development Consent No. DA-893/2020 modified in the terms in Annexure A, with the modified consent in Annexure B.
Legal Topics
['modification of Development Consent' 'operational Plan of Management' 'conciliation Conference Agreement' "commissioner's Power to Make Costs Orders" 'substantially the Same Development']
['environmental Planning and Development' 'land and Environment Court Procedure' 'costs'] ['modification of Development Consent' 'operational Plan of Management' 'conciliation Conference Agreement' "commissioner's Power to Make Costs Orders" 'substantially the Same Development']

Case Brief

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Procedural Posture

Class 1 Development Appeal; Application Pursuant to S 4.55(2) of the Environmental Planning and Assessment Act 1979 to Modify Development Consent Da/893/2020 / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreement to uphold the appeal and modify Development Consent No. DA-893/2020 was a decision the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether the modification application satisfied the jurisdictional prerequisites in s 4.55 of the Environmental Planning and Assessment Act 1979, including that the modified development is substantially the same development.' 'Whether a Commissioner had power to make the proposed costs order sought by the Respondent.']

Ratio Decidendi

The agreed modification was within the Court's power because the modification only encompassed Eid festivals through an updated Operational Plan of Management and consequential conditions, involved no change to approved built form or architectural plans, and therefore related to substantially the same development; notification produced no submissions. The parties' decision was therefore one the Court could have made under s 34(3) of the Land and Environment Court Act 1979. However, the Commissioner could not make the proposed costs order because r 3.10 of the Land and Environment Court Rules 2007 prevents a Commissioner exercising the general costs powers under s 98 of the Civil Procedure...

Court Disposition

Appeal upheld; Development Consent No. DA-893/2020 modified in the terms in Annexure A, with the modified consent in Annexure B.

Orders

  • ['The appeal is upheld.' 'Development Consent No. DA-893/2020 is modified in the terms in Annexure A.' 'Development Consent No. DA-893/2020 as modified by the Court is Annexure B.']