Background
Vanis Holdings Pty Ltd brought a Class 1 appeal against Bayside Council’s deemed refusal of an application to modify development consent DA-2022/246. The consent, granted by the Court in 2024, authorised site consolidation, demolition and construction of an 11-storey mixed-use development, together with alterations and additions to an existing nine-storey mixed-use building, at 251-269 and 271-275 Bay Street, Bright-Le-Sands.
The application initially sought six additional apartments, six additional parking spaces, internal reconfigurations, changes to external materials and finishes, and deletion of a condition concerning geotechnical certification and monitoring. After a court-arranged conciliation conference and further amendments, the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 (NSW) to approve the modification in amended form, subject to conditions. The amended proposal included 70 rather than 66 new units, 76 rather than 70 basement parking spaces, a more active street frontage, changes to the southern elevation and distribution of floor space, and a redesigned communal rooftop area.
The Court’s Holding
Commissioner Targett upheld the appeal and modified DA-2022/246 in accordance with the parties’ agreement. Under s 34(3), the Court was required to give effect to that agreement once satisfied that the agreed decision was one the Court could properly make. The Commissioner expressly stated that the Court neither was required to undertake nor undertook a merits assessment of the issues originally disputed.
The Commissioner found the jurisdictional requirements satisfied. In particular, the modified proposal remained substantially the same development because its height was unchanged, its floor-space ratio remained within the 4:1 standard, it retained its mixed-use character, and its overall effects concerning solar access, privacy and bulk were substantially the same. The Court also accepted that applicable notification, design-review, planning-instrument and referral requirements had been addressed; no submissions had been received during public notification.
Key Takeaways
- A court-granted development consent may be modified under s 4.56 of the Environmental Planning and Assessment Act 1979 (NSW) where the statutory requirements are met, including the substantially-the-same-development test.
- Under s 34(3) of the Land and Environment Court Act 1979 (NSW), the Court must implement the parties’ agreed decision if satisfied that it could properly have made that decision.
- An order implementing a conciliation agreement does not necessarily reflect a judicial merits determination of the parties’ original disputes.
Why It Matters
The decision illustrates the jurisdictional review the Land and Environment Court performs before approving a negotiated resolution of a planning appeal. Even where the parties agree, the Court must independently be satisfied that the outcome lies within its lawful powers.
It also shows that increases in apartments and parking, together with design and internal-layout changes, can satisfy the substantially-the-same-development requirement when the development’s height, compliant floor-space ratio, mixed-use character and principal environmental outcomes remain materially unchanged.