Background
Damianos and Maria Floratos appealed the imposition of modified conditions on their development consent at 43 Forest Road, Miranda. The original consent (DA22/0570) authorized demolition and construction of a dwelling house. The applicants sought to modify the consent through Modification Application MA25/0108 to make changes to ancillary works in the rear yard, including increased lawn area and landscaping within the western side setback. The Sutherland Shire Council issued modified conditions in response, which the applicants challenged in the Land and Environment Court under s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW).
The court arranged a conciliation conference on 1 July 2026 under s 34AA(2) of the Land and Environment Court Act 1979 (NSW), which Commissioner Espinosa presided over. At the conference, the parties reached agreement on acceptable terms for resolving the appeal without requiring the court to conduct a contested merit assessment of the original dispute.
The Court’s Holding
The court upheld the appeal and approved the modification application. Under s 34(3) of the Land and Environment Court Act, the court disposed of the proceedings in accordance with the parties’ agreed decision, adopting the parties’ reasoning without conducting independent merit assessments. The court found that all jurisdictional prerequisites under s 4.55 of the Environmental Planning and Assessment Act were satisfied.
The court confirmed that the proposed modifications satisfied the statutory test: they had minimal environmental impact (involving only landscape changes with no appreciable overshadowing or solar impacts beyond those already approved) and constituted “substantially the same development” because the modifications were minor alterations to the landscape area that did not change the original purpose of the dwelling consent. The court also found that proper notification procedures had been followed, with the application notified to 11 properties between 26 June 2025 and 12 July 2025, and no submissions were received. Consequently, the court issued orders modifying Development Consent DA22/0570 subject to amended conditions.
Key Takeaways
- Conciliation conferences under the Land and Environment Court Act can efficiently resolve development disputes when parties reach agreement, allowing the court to approve outcomes without contested merit hearings.
- Minor landscape modifications to residential development consents may be approved as “substantially the same development” if they do not alter the primary planning purpose and have minimal environmental impact.
- The “minimal environmental impact” threshold under s 4.55(1A) of the EPA Act is satisfied when modifications are confined to landscape changes without significant effects on overshadowing, solar access, or other environmental factors.
- Proper notification to affected landholders is a critical jurisdictional prerequisite; the court verified compliance with the Sutherland Shire Development Control Plan 2015 and the council’s Community Engagement Strategy.
Why It Matters
This decision illustrates how development modification disputes can be resolved efficiently through conciliation conferences that produce agreed outcomes. It provides practical guidance on what constitutes “minimal environmental impact” and “substantially the same development” for s 4.55 modification applications, helping property owners and councils understand the threshold for approving relatively minor ancillary modifications without triggering full reassessment.
The judgment also demonstrates the Land and Environment Court’s procedure for adopting agreed decisions under s 34(3) of its governing Act—when parties resolve their dispute, the court may approve the agreed outcome without conducting its own merit analysis, provided the agreement falls within the court’s proper legal authority. This procedural efficiency makes development modification disputes more accessible and cost-effective for residential landholders seeking minor variations to their consents.