X-Sealant Pty Ltd v Burwood Council [2022] NSWLEC 1316

X-Sealant Pty Ltd v Burwood Council [2022] NSWLEC 1316

The Court was satisfied that the notification requirements had been met, submissions had been considered, the development as proposed to be modified was substantially the same, the proposed modification was not inconsistent with the reasons for the original grant of consent, and the other identified planning controls and procedural requirements had been addressed. Because the parties' agreed decision approving the modification subject to conditions was one the Court could have made in the proper exercise of its functions, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
20 June 2022
Procedural Posture
Class 1 Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Parties Reached Agreement and Consent Orders Were Made
Outcome
Appeal upheld; Modification Application No. MOD.10.2017.124.4 approved; Development Consent DA.10.2017.124.1 modified subject to consolidated modified conditions.
Legal Topics
['class 1 Development Appeal' 'modification Application' 'communal Open Space' 'penthouse Apartment' 'floor Space Ratio' 'building Height' 'conciliation Conference' 'consent Orders']
['planning and Environment Law' 'development Consent Modification'] ['class 1 Development Appeal' 'modification Application' 'communal Open Space' 'penthouse Apartment' 'floor Space Ratio' 'building Height' 'conciliation Conference' 'consent Orders']

Case Brief

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Procedural Posture

Class 1 Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Parties Reached Agreement and Consent Orders Were Made

Legal Issues

  1. 1 ['Whether the jurisdictional prerequisites for approval of Modification Application No. MOD.10.2017.124.4 under s 4.55 of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the development as proposed to be modified was substantially the same development pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed modification was inconsistent with the reasons for the grant of the original development consent, as required to be considered under s 4.55(3) of the Environmental Planning and Assessment Act 1979.' "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."]

Ratio Decidendi

The Court was satisfied that the notification requirements had been met, submissions had been considered, the development as proposed to be modified was substantially the same, the proposed modification was not inconsistent with the reasons for the original grant of consent, and the other identified planning controls and procedural requirements had been addressed. Because the parties' agreed decision approving the modification subject to conditions was one the Court could have made in the proper exercise of its functions, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Court Disposition

Appeal upheld; Modification Application No. MOD.10.2017.124.4 approved; Development Consent DA.10.2017.124.1 modified subject to consolidated modified conditions.

Orders

  • ['The appeal is upheld;' 'Modification Application No. MOD.10.2017.124.4 to modify development consent DA.10.2017.124.1 is approved;' 'Development consent DA.10.2017.124.1 is modified in the terms in Annexure A to this agreement;' 'As a consequence of order 22(3), development consent DA.10.2017.124.1 is subject to...