Background
AB Holdings Company Pty Ltd brought a Class 1 development appeal under s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) after Central Coast Council refused its application to modify an existing consent for commercial premises and shop-top housing at 58–62 Araluen Drive, Hardys Bay.
The amended proposal included internal and footprint reconfigurations, revised commercial and residential areas, an additional third-floor dwelling, a recessed fifth level containing master bedrooms for the fourth-floor units, expanded terraces and landscaping, and altered excavation, parking, storage and service arrangements. The parties reached agreement during a conciliation conference conducted under s 34 of the Land and Environment Court Act 1979 (NSW).
The Court’s Holding
Commissioner Espinosa upheld the appeal, approved Modification Application DA/55789/2018/B and modified the development consent in accordance with the agreed conditions. Under s 34(3), the Court was required to give effect to the parties’ agreement once satisfied that the agreed decision was one the Court could properly make.
The Court found that the jurisdictional requirements of s 4.55(2) of the Environmental Planning and Assessment Act were met. Despite the new recessed level, an additional dwelling and a gross-floor-area increase of approximately 276 square metres, or 17%, the modified project remained substantially the same development: its mixed commercial and shop-top-housing use, general scale, form, access points and presentation were retained. Required public notification had occurred, twelve submissions concerning traffic, view loss, stormwater and excavation had been considered, and no concurrence consultation was necessary.
The Commissioner expressly made no merits assessment of the issues originally disputed by the parties. The orders instead implemented their conciliated agreement after the Court verified its power to make the agreed decision.
Key Takeaways
- A modification may remain “substantially the same development” despite an additional dwelling, a recessed new level and a 17% increase in gross floor area where the approved use, essential character, scale and form are retained.
- Before entering consent orders under s 34, the Court must independently confirm that all jurisdictional prerequisites for the agreed decision are satisfied.
- Approval following a conciliation agreement does not necessarily represent a judicial determination of the substantive planning disputes originally raised.
Why It Matters
The decision illustrates the qualitative nature of the “substantially the same development” inquiry under s 4.55(2). Changes in floor area, unit numbers and building configuration are relevant but do not alone prevent modification where the development retains its fundamental identity.
It also underscores the limited but essential role of the Court when resolving a development appeal by agreement: the Court need not decide the merits, but it must ensure that the proposed consent orders fall within its lawful powers and that notification, submissions and other statutory prerequisites have been addressed.