Background
Man Dick Chau and Yuk Ching Law appealed directly to the Land and Environment Court under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW), seeking to modify a development consent the Court had granted in 2025 for alterations and additions to their dwelling at 25A Queens Road, Connells Point.
The modification application sought internal and external changes, including reinstatement of retaining walls, minor interior changes, extra lower-ground-floor space and rear retaining walls. Four objections were received, raising issues including whether the proposal remained substantially the same development, building height, floor-space ratio, geotechnical matters, views, landscaping, earthworks and foreshore impacts.
The Court’s Holding
Commissioner Targett upheld the appeal and approved Modification Application MOD2026/0064, subject to conditions. The original development consent, DA2023/0586, was modified in accordance with the Court’s annexed terms.
The parties had reached agreement before the conciliation conference. The Commissioner held that the agreed outcome was one the Court could make in the proper exercise of its functions, requiring the Court under s 34(3) of the Land and Environment Court Act 1979 (NSW) to give effect to it. The Commissioner did not conduct a merits assessment of the matters originally disputed.
The Court was satisfied that the modified proposal remained the same or substantially the same development: a single contemporary dwelling whose overall envelope, scale and massing were maintained. It also accepted that relevant planning, coastal, geotechnical, stormwater, foreshore, riparian and landscaping requirements were met or addressed through the material and conditions, including a proposed landscaped area of 25% of the site.
Key Takeaways
- A consent originally granted by the Land and Environment Court may be the subject of a direct modification application to the Court under s 4.55(8).
- In a s 34 conciliation outcome, the Court must make the parties’ agreed decision if it is within the Court’s lawful powers; it need not independently conduct a merits review of every disputed issue.
- Modifications can satisfy the “same or substantially the same development” test where the approved dwelling’s essential identity, envelope, scale and massing remain intact.
Why It Matters
The decision illustrates the operation of the Land and Environment Court’s conciliation process for agreed planning modifications. The Court’s role was to confirm that the agreement was legally available and that the statutory modification requirements were satisfied, rather than to re-litigate the objections on their merits.
For residential development proponents, the case also shows that additional internal space, retaining-wall works and landscaping changes may be dealt with as a modification where they do not materially alter the approved development’s essential character.