Background
TLB Trading Pty Ltd owned 10 Marne Street, Vaucluse, a 631.6-square-metre site in the R2 Low Density Residential Zone. The Court had granted development consent in 2019 for demolition and construction of a three-storey residential flat building containing nine apartments, basement parking and strata subdivision. Council approved an earlier modification in 2020.
In January 2026, the owner sought a further modification under s 4.55 of the Environmental Planning and Assessment Act 1979 (NSW). The proposal included altered building projections, increased height, changes to the front setback and external works, increased fill, and fewer apartments. After negotiations, the proposal was amended to five apartments, with revisions including a relocated driveway, altered basement arrangements, a smaller entry portico, deletion of a proposed upper level, and reduced streetscape bulk.
The Court’s Holding
Acting Commissioner Peatman approved Modification Application DA-286/2018/B under s 4.55(8), subject to the agreed conditions and amended plans. The Court modified the 2019 development consent, as previously modified in 2020, to give effect to the second modification application.
The parties had reached agreement at a conciliation conference. The Court found that the modified proposal remained substantially the same development, had been notified and renotified, and could properly be approved under s 34(3) of the Land and Environment Court Act 1979 (NSW). Although the proposal contravened the local height standard, the parties and Court considered the height acceptable because it would cause no appreciable change to approved height, bulk and scale and the relevant amenity impacts had been considered.
Key Takeaways
- A consent may be modified where the development remains substantially the same as the originally approved development.
- The Court approved a height-standard contravention after finding the amended proposal acceptable in its site and amenity context.
- A Class 1 conciliation agreement must be adopted where it is a decision the Court could lawfully make.
Why It Matters
The decision illustrates the Court’s use of conciliation to resolve a contested modification application after revised plans addressed concerns about visual bulk, streetscape effects and neighbouring amenity. It also confirms that changes to apartment numbers, layouts and building form do not necessarily prevent a modification application, provided the statutory “substantially the same development” threshold is met.