Background
Hamid Samavi brought a Class 1 development appeal against Randwick City Council’s refusal of an application to modify the development consent for a residential flat building at 68 Beach Street, Coogee. The proposed modifications included using a ground-floor services area for non-habitable purposes associated with Unit 1, combining Units 4 and 5, and making ancillary changes involving skylights, non-trafficable areas, gates and the relocation of stairs.
The hearing began with an on-site session on 29 September 2026. After joint expert reporting and further information resolved the disputed issues, the parties requested a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW). They reached an agreement supported by amended plans and documentation, including an updated BASIX certificate and design-verification statement.
The Court’s Holding
Commissioner Porter upheld the appeal and modified Development Consent No. DA923/2023 in accordance with the parties’ agreement. Under s 34(3), the Court’s task was to determine whether jurisdictional constraints prevented it from making the agreed orders, rather than to conduct a merits assessment of the issues formerly in dispute.
The Court was satisfied that the modified development remained substantially the same as the originally approved development because the changes did not alter its essence or key features. Although the proposal’s floor-space ratio increased to 1.61:1, exceeding the 1.25:1 available under the relevant housing incentive provisions, the Court accepted that a clause 4.6 variation was unnecessary for this modification application and that the proposal remained consistent with the floor-space-ratio standard’s objectives.
The Court also found that the application had been properly notified, the objections and amenity concerns had been considered, privacy-related amendments had been made, no concurrence from another approval body was required, and the statutory considerations and documentation requirements had been satisfied. It therefore concluded that the agreement was one the Court could lawfully make in the proper exercise of its functions.
Key Takeaways
- In approving a conciliation agreement under s 34, the Court performs a jurisdictional check rather than deciding the previously disputed issues on their merits.
- The internal and external changes, including combining two apartments, did not prevent the modified project from being substantially the same development as originally approved.
- The Court accepted that a clause 4.6 variation was not required for the increased floor-space ratio because the proceeding concerned a modification application.
Why It Matters
The decision illustrates the limited but essential role of the Land and Environment Court when parties settle a development appeal through conciliation. Even where the consent authority and applicant agree, the Court must independently confirm that it has statutory power to make the proposed orders.
It also shows how the “substantially the same development” requirement may accommodate meaningful design changes where the development’s essential character remains intact, while notification, objections, amenity impacts and required supporting documents must still be addressed.