Background
Vinay Halasagi appealed under s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) from the City of Canada Bay Council’s refusal of MOD2025/0007. The modification application concerned a 2024 development consent for demolition of the existing dwelling and construction of a new dwelling, parking and landscaping at 131 Henley Marine Drive, Drummoyne.
At a Court conciliation conference, the parties agreed on amended architectural and engineering plans. The amendments removed a proposed car stacker and associated additional basement area, restored the parking arrangement and finished levels approved under the original consent, and reduced excavation. The experts agreed the changes resolved the Council’s relevant contentions.
The Court’s Holding
Acting Commissioner Harding upheld the appeal and modified Development Consent DA/2023/0219 in accordance with the parties’ agreed terms and conditions.
The Commissioner was satisfied under s 34(3) of the Land and Environment Court Act 1979 (NSW) that approving the modification was a decision the Court could properly make. The modified proposal remained the same or substantially the same development as that originally approved: its building-envelope controls and streetscape presentation were unchanged, neighbour impacts were unchanged or no greater, and necessary services remained available.
Key Takeaways
- The Court may give effect to a conciliation agreement where the proposed outcome is within its statutory power.
- Removing the car stacker, extra basement area and related excavation enabled the parties to resolve the planning issues.
- The Court did not undertake a broader merits assessment under s 4.15 beyond the matters described in the judgment.
Why It Matters
The decision illustrates how an unsuccessful modification application can be resolved on appeal through amended plans and expert agreement. It also confirms the importance of demonstrating that proposed changes preserve the identity of the originally approved development and do not worsen relevant impacts.