X-Sealant Pty Ltd v Burwood Council [2024] NSWLEC 1452

X-Sealant Pty Ltd v Burwood Council [2024] NSWLEC 1452

Because the amended modification application complied with the Environmental Planning and Assessment Regulation 2021, was made under s 4.55(1A), was of minimal environmental impact, resulted in a development quantitatively and qualitatively substantially the same as the originally approved development, required no concurrence consultation, was notified with no submissions received, and no relevant s 4.15(1) matters precluded approval, the Court was satisfied under s 34(3) of the Land and Environment Court Act 1979 that it could make the agreed decision and was required to dispose of the proceedings accordingly.

Jurisdiction
Australia
Judgment Date
31 July 2024
Procedural Posture
Class 1 Appeal Concerning an Application to Modify Development Consent Da/10.2017.124.1 / Orders Made Following a Conciliation Conference and Agreement Between the Parties Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; leave granted to rely on the amended development application; development consent modified by approval of Modification Application 10.2017.124.6.
Legal Topics
['modification of Development Consent' 'class 1 Appeal' 'conciliation Conference' 'communal Open Space Design Amendments' 'mixed Use Development' 'floor Space Ratio' 'state Environmental Planning Policy (housing) 2021' 'basix']
['planning and Environment Law'] ['modification of Development Consent' 'class 1 Appeal' 'conciliation Conference' 'communal Open Space Design Amendments' 'mixed Use Development' 'floor Space Ratio' 'state Environmental Planning Policy (housing) 2021' 'basix']

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Procedural Posture

Class 1 Appeal Concerning an Application to Modify Development Consent Da/10.2017.124.1 / Orders Made Following a Conciliation Conference and Agreement Between the Parties Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could make orders giving effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the modification application satisfied s 4.55(1A) of the Environmental Planning and Assessment Act 1979, including minimal environmental impact and substantially the same development.' 'Whether relevant matters under ss 4.55(3) and 4.15(1) of the Environmental Planning and Assessment Act 1979 precluded approval of the modification application.' 'Whether the proposed modification remained permissible and acceptable under Burwood Local Environmental Plan 2012 and relevant State environmental planning policies.']

Ratio Decidendi

Because the amended modification application complied with the Environmental Planning and Assessment Regulation 2021, was made under s 4.55(1A), was of minimal environmental impact, resulted in a development quantitatively and qualitatively substantially the same as the originally approved development, required no concurrence consultation, was notified with no submissions received, and no relevant s 4.15(1) matters precluded approval, the Court was satisfied under s 34(3) of the Land and Environment Court Act 1979 that it could make the agreed decision and was required to dispose of the proceedings accordingly.

Court Disposition

Appeal upheld; leave granted to rely on the amended development application; development consent modified by approval of Modification Application 10.2017.124.6.

Orders

  • ['The Applicant is granted leave to rely upon the amended development application as listed at [7] in the judgment.' 'The appeal is upheld.' 'Development consent No. 10.2017.124.1 is modified in the terms in Annexure A by the approval of Modification Application 10.2017.124.6.' 'Development consent No....