Background
Moini Pty Limited had obtained Court-granted development consent for a co-living housing project across properties in Forest Lodge. The original approval followed a section 34 conciliation agreement between Moini and the City of Sydney Council.
Moini later sought to modify Condition 21, concerning a consolidation plan. Following further survey work, new land titles and deposited plans had clarified the site boundaries. The parties agreed that compliance with the condition should move from before issue of the construction certificate to before issue of the occupation certificate, with related changes to an advisory note and site description.
The Court’s Holding
Commissioner Walsh upheld the appeal and modified Development Consent DA/2023/393 in accordance with the parties’ section 34 agreement.
The Court held that the modification could be made under section 4.55(1A) of the Environmental Planning and Assessment Act 1979 (NSW). It was procedural, had minimal environmental impact, and left the development substantially the same as that originally approved. No notification was required. The statutory jurisdictional prerequisites were met, so section 34(3) of the Land and Environment Court Act 1979 (NSW) required the Court to give effect to the agreement.
Key Takeaways
- A procedural change to the timing of compliance with a consent condition may qualify as a minimal-impact modification.
- Clarified titles and registered deposited plans resolved the Council’s earlier boundary-definition concern.
- In giving effect to a section 34 agreement, the Court considered jurisdictional constraints rather than conducting a fresh merits assessment of the original dispute.
Why It Matters
The decision illustrates the availability of section 4.55(1A) to make limited procedural adjustments to a Court-granted development consent without changing the development’s essential character.
It also confirms that, once the Court is satisfied it has power to make the agreed decision, section 34(3) requires it to dispose of the matter in accordance with the parties’ conciliation agreement.