Drumalbyn B Pty Ltd & Ors v Woollahra Municipal Council [2023] NSWLEC 1569

Drumalbyn B Pty Ltd & Ors v Woollahra Municipal Council [2023] NSWLEC 1569

Because the jurisdictional prerequisites were satisfied, including that the amended modification application was substantially the same development as originally approved and relevant planning controls and materials had been considered, the parties' agreement was a decision the Court could have made in the proper exercise of its functions; therefore s 34(3) required the Court to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
28 September 2023
Procedural Posture
Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Following Deemed Refusal of Modification Application No Da416/2021/2 / Orders Made After S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; Development consent DA416/2021/1 modified.
Legal Topics
['modification Application to Court Consent' 'seniors Housing Development' 'conciliation Conference' 'jurisdictional Prerequisites' 'substantially the Same Development' 'heritage Items' 'earthworks' 'basix' 'residential Flat Design Quality']
['environmental Planning and Assessment' 'land and Environment Court Proceedings' 'development Consent Modification'] ['modification Application to Court Consent' 'seniors Housing Development' 'conciliation Conference' 'jurisdictional Prerequisites' 'substantially the Same Development' 'heritage Items' 'earthworks' 'basix' 'residential Flat Design Quality']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Following Deemed Refusal of Modification Application No Da416/2021/2 / Orders Made After S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreement 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 amended modification application satisfied the jurisdictional prerequisites under s 4.56 of the Environmental Planning and Assessment Act 1979.' 'Whether the amended modification application was substantially the same development as the development originally approved.' 'Whether relevant environmental planning instruments and development assessment matters were satisfied for the amended modification application.']

Ratio Decidendi

Because the jurisdictional prerequisites were satisfied, including that the amended modification application was substantially the same development as originally approved and relevant planning controls and materials had been considered, the parties' agreement was a decision the Court could have made in the proper exercise of its functions; therefore s 34(3) required the Court to dispose of the proceedings in accordance with that agreement.

Court Disposition

Appeal upheld; Development consent DA416/2021/1 modified.

Orders

  • ['The appeal is upheld.' 'Development consent DA416/2021/1 is modified in the terms in Annexure A to this agreement.' 'Development consent DA416/2021/1 as modified by the Court is Annexure B to this agreement.']