Background
Cadele Investments Pty Ltd held development consent for demolition and construction of a part three- and part four-storey boarding house at 8 Clyde Street, Randwick. The approved development included 26 boarding rooms, a manager’s room, communal areas, basement parking, landscaping and tree removal.
In November 2024, Cadele applied under s 4.56 of the Environmental Planning and Assessment Act 1979 (NSW) to modify that consent. The proposed changes concerned access and parking, the building entry and footprint, and internal room and communal-area configurations. Randwick’s Local Planning Panel refused the application in November 2025, and Cadele appealed.
After a conciliation process, the parties agreed to an amended modification. It included an external accessible parking space, removal of a turntable, six car spaces in a car stacker (including car-share and manager spaces), five motorcycle spaces, bicycle facilities, a relocated garbage room, a new communal undercroft open space, and changed finishes to the lift overrun and stair headroom.
The Court’s Holding
Commissioner Targett upheld the appeal and modified Development Consent No DA/222/2020 in accordance with the parties’ agreement. The Court held that the agreed outcome was one it could make in the proper exercise of its functions and was therefore required by s 34(3) of the Land and Environment Court Act 1979 (NSW) to give effect to it.
The Court was satisfied that the modified proposal remained substantially the same development as originally approved. It remained a boarding-house development with subterranean parking, landscaping and associated works; the external changes were minor; and the reduction in car spaces did not alter that conclusion. The Court also accepted that notification requirements had been met, relevant submissions had been considered, and the amended plans did not require further notification because of their minor nature.
The Commissioner expressly did not conduct a merits assessment of the issues formerly in dispute. Instead, the Court assessed whether the statutory preconditions for making the agreed decision were met, including consideration of relevant planning matters and the original reasons for consent.
Key Takeaways
- A court may approve a consent modification agreed in conciliation if it is a decision the court could properly make.
- A substantial reduction in parking did not prevent this boarding-house proposal from remaining substantially the same development.
- The Court gave effect to the agreement without independently re-deciding the planning merits contested before settlement.
Why It Matters
The decision illustrates the operation of the Land and Environment Court’s conciliation jurisdiction in modification appeals. Once parties reach an agreement, the central question is whether the Court has power to make that decision—not whether it would independently prefer the agreed design on a full merits assessment.
For proponents and councils, the case also confirms that changes to parking and internal layout can be approved under the modification power where the consent, viewed as modified, remains substantially the same development and statutory requirements are satisfied.