Background
Appwam Pty Ltd appealed Burwood Council’s refusal of a modification application for an existing Land and Environment Court development consent at 254–256 Liverpool Road, Enfield. The consent authorised demolition and a six-storey mixed-use development comprising ground-floor retail premises, a new-age boarding house and one basement parking level.
The proposed modification reduced the basement footprint and excavation, refined internal layouts, and altered the rooftop to provide communal space. Following earlier discussions and a conciliation conference, the parties agreed to amended architectural drawings and supporting management, traffic, acoustic, waste and voluntary-planning-agreement material.
The Court’s Holding
Commissioner Espinosa upheld the appeal and modified Development Consent DA.10.2020.132.1 in the terms set out in Annexure A, with the consolidated modified consent in Annexure B.
The Court held that the parties’ agreed outcome was one it could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979 (NSW). It accepted that the s 4.55(2) requirements were met, including that the development as modified remained substantially the same development: it retained the mixed-use retail and boarding-house use and largely retained the approved building envelope. The application had also been publicly notified, with no submissions received.
Key Takeaways
- A consent modification may proceed under s 4.55(2) where the development remains substantially the same, notwithstanding changes to basement works, internal configuration and rooftop communal space.
- In a s 34 conciliation outcome, the Court must give effect to the parties’ decision if it is legally available; it does not undertake a separate merits assessment of the original disputes.
- Agreed amendments and updated supporting documents can resolve a council refusal in a Class 1 development appeal.
Why It Matters
The decision illustrates the practical role of conciliation in NSW planning appeals. Once the statutory prerequisites for modification were satisfied and the parties reached an acceptable agreement, the Court formalised that outcome through modified consent conditions.
It also confirms that the “substantially the same development” inquiry focuses on the continuing character of the approved development, including its use and overall building envelope.