Background
Yarranabbe Ventures Pty Limited sought to modify DA7/2024, a consent the Court had granted in 2024 for demolition and construction of a residential flat building at 77–83A Yarranabbe Road, Darling Point. The approved development comprised eight apartments over five levels with 18 car spaces.
The proposed modification included internal and external changes, including relocating a substation and altering the roof and mechanical plant. It would result in nine apartments and 20 car spaces, with the extra apartment created by dividing one approved unit into two smaller units. The Council notified the proposal; no timely objections were received, although one submission was lodged late and raised view-impact concerns.
The Court’s Holding
Commissioner Horton approved the modification application under s 4.55 of the Environmental Planning and Assessment Act 1979 (NSW). The Court held that the modified development remained substantially the same as the original approval: it remained a residential apartment building, its internal-layout changes were minor, its envelope changes were minimal, its height did not change, and the additional basement excavation was minor and created no additional gross floor area.
The parties reached agreement at a conciliation conference and filed a signed agreement under s 34 of the Land and Environment Court Act 1979 (NSW). The Court was satisfied that the agreed outcome was one it could lawfully make, including because relevant planning matters had been addressed. It therefore made orders approving the modification and further modifying DA7/2024 in accordance with the annexed conditions and consent.
Key Takeaways
- A modification may add a dwelling without ceasing to be substantially the same development where the overall approved apartment project and built form remain largely unchanged.
- The Court gave effect to the parties’ conciliation agreement after confirming the statutory preconditions for a modification approval were met.
- The Court did not conduct a fresh merits assessment of the issues formerly disputed between the parties.
Why It Matters
The decision illustrates the Land and Environment Court’s role in a planning conciliation outcome: even where the parties agree, the Court must be satisfied that it could lawfully make the agreed orders. Here, the changes were accepted as limited modifications to the existing consent rather than a materially different development.
It also confirms that a previously approved departure from height or floor-space-ratio standards did not require a new cl 4.6 variation where the modification did not further exceed those standards.