Background
The applicant appealed the Council’s deemed refusal of a modification application under s 4.56 of the Environmental Planning and Assessment Act 1979 (NSW). The application sought further changes to a Court-approved commercial building at 356-366 New South Head Road, Double Bay. The original consent, granted in 2023, had already been modified in 2025.
The proposed changes reduced demolition by retaining parts of the existing stair and lift core, reconfigured internal layouts, enlarged and screened the rooftop plant area, made minor façade and access changes, adjusted planters and balustrades, and amended stormwater conditions. Two objectors raised visual and acoustic concerns about the roof plant and concerns relating to a supposed new substation. The applicant said no new substation was proposed and relied on acoustic evidence addressing plant noise.
The Court’s Holding
Acting Commissioner Bilmon upheld the appeal and modified development consent DA279/2022/1 in accordance with modification application DA279/2022/5. The Court made the parties’ agreed orders following a s 34 conciliation conference.
The Court was satisfied that the modified proposal remained substantially the same development as that originally approved: a commercial office building with the same essential character. It found that the retained structure, enlarged screened plant area, and other changes did not amount to a significant departure from the approved built form. The Court also accepted that notification and other statutory requirements had been met and that the agreed outcome was one the Court could properly make.
Key Takeaways
- A consent modification may be approved where the development, as modified, remains substantially the same as the development originally approved.
- Retaining existing structural elements and making associated layout changes did not alter the essential character of this approved commercial building.
- Following a valid s 34 agreement, the Court was required to dispose of the proceedings in accordance with the parties’ agreed decision.
Why It Matters
The decision illustrates the application of the “substantially the same development” test to post-consent design and construction changes. A larger, screened rooftop plant area and other refinements were permissible because they did not radically transform the approved development.
It also shows the practical effect of Land and Environment Court conciliation: once the Court is satisfied the statutory criteria are met, an agreed modification can be formalised without the Court independently determining the issues initially contested between the parties.