Urban Abode Developments Pty Ltd v Goulburn Mulwaree Council [2022] NSWLEC 1151

Urban Abode Developments Pty Ltd v Goulburn Mulwaree Council [2022] NSWLEC 1151

The Court upheld the appeal and approved the modification because, on the evidence and the Council's submissions, the proposal remained substantially the same development as originally approved, required consultation and notification had occurred, submissions had been considered and addressed by conditions, heritage impacts were acceptable, and the parties' agreed decision was one the Court could make in the proper exercise of its functions.

Jurisdiction
Australia
Judgment Date
24 March 2022
Procedural Posture
Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Orders Made Following a S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; modification application approved subject to consolidated conditions of consent at Annexure A.
Legal Topics
['multi Dwelling Housing' 'modification Application' 'substantially the Same Development' 'notification and Submissions' 'heritage Conservation Area' 'conciliation Agreement']
['planning and Environment' 'development Consent Modification' 'land Use Planning'] ['multi Dwelling Housing' 'modification Application' 'substantially the Same Development' 'notification and Submissions' 'heritage Conservation Area' 'conciliation Agreement']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Orders Made Following a S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ['Whether Modification Application No. MODDA/0108/2021 satisfied the preconditions in s 4.55(2) of the Environmental Planning and Assessment Act 1979.' 'Whether the development as modified was substantially the same development as the development for which consent was originally granted.' 'Whether required consultation, notification and consideration of submissions had occurred.' 'Whether the proposal would have an acceptable impact on the heritage significance of the nearby heritage item and heritage conservation area.' "Whether the parties' agreed decision was a decision the Court could have made in the proper exercise of its functions."]

Ratio Decidendi

The Court upheld the appeal and approved the modification because, on the evidence and the Council's submissions, the proposal remained substantially the same development as originally approved, required consultation and notification had occurred, submissions had been considered and addressed by conditions, heritage impacts were acceptable, and the parties' agreed decision was one the Court could make in the proper exercise of its functions.

Court Disposition

Appeal upheld; modification application approved subject to consolidated conditions of consent at Annexure A.

Orders

  • ['The appeal is upheld.' 'Modification Application No. MODDA/0108/2021 to modify Development Consent No. 0234/1718 (as modified by MODDA/0020/1819, MODDA/0009/1920 and MODDA/001/2021) to replace approved Block A (4 dwellings) with 5 dwellings (T1-T5) arranged in two blocks, increasing the total number of approved...