Background
Arcadia Construction sought to modify a development consent for a mixed-use apartment building at 30–32 The Avenue, Hurstville. The Court had originally granted consent in 2023, and the Council had approved a further modification in 2025. Construction had commenced but was stalled pending this application.
The proposed changes reconfigured apartments, changed the dwelling mix to include one four-bedroom unit, reduced parking from 31 to 30 spaces, reduced retail floor area, refined rooftop communal open space and elevations, and included a lift overrun omitted from the original plans. The building remained four storeys, although its maximum height was 18.04 metres, exceeding the applicable 15-metre standard.
The Court’s Holding
Following an onsite view and conciliation conference, the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 (NSW). Acting Commissioner Bilmon held that the agreed outcome was one the Court could properly make and upheld the appeal.
The Court approved Modification Application MOD2026/0020 and modified Development Consent DA2021/0399 in accordance with the agreed plans and conditions. It found that the development as modified remained substantially the same development: its mixed-use character, land uses, overall dwelling yield, essential built form and character were retained, and the changes would not create materially different impacts on overshadowing, privacy, views, traffic, landscaping or visual bulk.
The Court also accepted that the height and floor-space-ratio variations did not adversely alter the previously approved development. The lift overrun did not create additional habitable space, the height-standard objectives were met, the application had been notified without submissions, and the relevant environmental planning considerations had been addressed.
Key Takeaways
- A Court-granted consent may be modified where the proposal remains substantially the same development and statutory requirements are met.
- Agreed outcomes reached in a s 34 conciliation conference must be made if they are decisions the Court could lawfully have made.
- Height and FSR non-compliance did not prevent approval where the Court was satisfied the applicable objectives were achieved and impacts were not materially changed.
Why It Matters
The decision illustrates the Land and Environment Court’s role in giving effect to a negotiated modification outcome after independently confirming the jurisdictional and planning prerequisites. It also shows that changes to unit layouts, façade presentation, rooftop facilities and minor development metrics can be approved without remaking the consent where the proposal retains the approved development’s essential identity.