Common Office Pty Ltd v Waverley Council [2023] NSWLEC 1625

Common Office Pty Ltd v Waverley Council [2023] NSWLEC 1625

The agreed orders were within power because the jurisdictional preconditions were satisfied: the modified development was substantially the same as the originally approved dual occupancy, the application had been notified and objections were satisfactorily addressed, an updated BASIX certificate was filed, the Biodiversity and Conservation SEPP matters were considered and addressed, and the conditions sought by the Council were agreed. The Court therefore disposed of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
19 October 2023
Procedural Posture
Class 1 Appeal Concerning Refusal of Modification Application Da462/2021/a to Modify Development Consent Da462/2021 / Conciliation Conference Under Ss 34 and 34 AA of the Land and Environment Court Act 1979; Parties Reached Agreement and the Court Made Orders
Outcome
Appeal upheld; development consent DA-462/2021 was modified and the modified consent was described as DA-462/2021/A.
Legal Topics
['modification Application Under S 4.55 of the Environmental Planning and Assessment Act 1979' 'dual Occupancy Dwelling' 'conciliation Conference' 'agreement Between the Parties' 'basix' 'biodiversity and Conservation']
['planning and Environment' 'development Consent Modification'] ['modification Application Under S 4.55 of the Environmental Planning and Assessment Act 1979' 'dual Occupancy Dwelling' 'conciliation Conference' 'agreement Between the Parties' 'basix' 'biodiversity and Conservation']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning Refusal of Modification Application Da462/2021/a to Modify Development Consent Da462/2021 / Conciliation Conference Under Ss 34 and 34 AA of the Land and Environment Court Act 1979; Parties Reached Agreement and the Court Made Orders

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 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 under s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether notification, BASIX, biodiversity and conservation, landscaping, and conditions of consent matters were satisfactorily addressed.']

Ratio Decidendi

The agreed orders were within power because the jurisdictional preconditions were satisfied: the modified development was substantially the same as the originally approved dual occupancy, the application had been notified and objections were satisfactorily addressed, an updated BASIX certificate was filed, the Biodiversity and Conservation SEPP matters were considered and addressed, and the conditions sought by the Council were agreed. The Court therefore disposed of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Appeal upheld; development consent DA-462/2021 was modified and the modified consent was described as DA-462/2021/A.

Orders

  • ['The appeal is upheld.' "Development consent DA-462/2021 relating to the demolition of existing structures and erection of dual occupancy dwellings at land identified as 12 Princess Street, Rose Bay, being Lot 12 in Section B in DP 4185 is modified in the terms set out in Annexure 'A'." "Development consent...