Conway v Blue Mountains City Council [2019] NSWLEC 1537

Conway v Blue Mountains City Council [2019] NSWLEC 1537

Because the amended proposal was supported by the parties, the Court had power to permit amendment of the development application, the statutory and jurisdictional matters including cl 4.4B(5) of the Blue Mountains Local Environmental Plan 2015 and cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land were satisfied or adequately considered, and the agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
05 November 2019
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application X/1031/2018 / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development consent granted to the amended development application subject to conditions.
Legal Topics
['development Application Appeal' 'conciliation Conference' 'agreement Between Parties' 'amendment of Development Application' 'e4 Environmental Living Zone' 'principal Development Area' 'ancillary or Incidental Development' 'contamination Assessment' 'notification of Amended Plans']
['planning and Environment Law' 'development Consent' 'land and Environment Court Proceedings'] ['development Application Appeal' 'conciliation Conference' 'agreement Between Parties' 'amendment of Development Application' 'e4 Environmental Living Zone' 'principal Development Area' 'ancillary or Incidental Development' 'contamination Assessment' 'notification of Amended Plans']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application X/1031/2018 / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could grant leave to amend the development application in accordance with the parties' agreement." "Whether the parties' agreed decision was one the Court could have made in the proper exercise of its functions for the purposes of s 34(3) of the Land and Environment Court Act 1979." 'Whether cl 4.4B(5) of the Blue Mountains Local Environmental Plan 2015 permitted consent for development not located within a complying principal development area.' 'Whether the proposed shed was ancillary or incidental to a dwelling house.' 'Whether contamination, objector submissions, zone objectives and notification requirements had been adequately considered.']

Ratio Decidendi

Because the amended proposal was supported by the parties, the Court had power to permit amendment of the development application, the statutory and jurisdictional matters including cl 4.4B(5) of the Blue Mountains Local Environmental Plan 2015 and cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land were satisfied or adequately considered, and the agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

Appeal upheld; development consent granted to the amended development application subject to conditions.

Orders

  • ['The Applicant is granted leave to rely on the amended plans and additional documentation listed in the orders.' 'The appeal is upheld.' 'Development Application No. X/1031/2018 for site preparation works and the construction of a metal clad shed and rainwater tank on the land at 17 Rock Wallaby Way, Blaxland is...