Background
Zapeco Constructions applied to modify Development Consent No. DA/2024/0802 for a residential development at 96 Rosser Street, Balmain (Lot 4 DP 560826). The modification application sought to add a covered Colorbond carport in place of an approved on-site parking space. Inner West Council refused the modification application (MOD/2026/0041), prompting Zapeco to appeal to the Land and Environment Court as a Class 1 Development Appeal under section 8.9 of the Environmental Planning and Assessment Act 1979 (NSW).
The Court arranged a conciliation conference on 10 July 2026, presided over by Commissioner Espinosa. The parties were represented by counsel and reached agreement on all contentious issues, including amended plans and agreed conditions of consent. At the conciliation, the parties agreed that upholding the appeal and approving the modification would constitute an appropriate disposition of the proceedings.
The Court’s Holding
The Court upheld the appeal and approved the modification application. Under section 34(3) of the Land and Environment Court Act 1979 (NSW), the Court disposed of the proceedings in accordance with the parties’ agreed decision, which the Court found was a decision the Court could properly make in exercise of its functions. The Court did not undertake a merit assessment of the originally disputed issues; instead, the parties’ agreement on the modifications and conditions governed the outcome.
The Court confirmed that jurisdictional prerequisites under section 4.55 of the Environmental Planning and Assessment Act 1979 (NSW) were satisfied: the proposed modified development was substantially the same as the originally approved development. The nature and characterization remained unchanged; the carport addition did not increase gross floor area (the carport is not enclosed), floor space ratio, site coverage outcomes, or reduce landscaped area. The modification application had been notified in accordance with the Inner West Council Community Engagement Strategy 2025–2029 from 24 February to 10 March 2026, with no submissions received.
Development Consent No. DA/2024/0802 was modified to include: (1) parking space materials changed from 50% permeable to hard stand concrete slab; (2) a Colorbond hipped carport with roof ridge RL26.94 and 15-degree fall; (3) enclosure of the carport on the northern elevation (full length, abutting the dwelling), eastern elevation (full length with walls and garage door), and partial southern elevation; and (4) a 1-metre balustrade on the western elevation.
Key Takeaways
- An appeal may be resolved through conciliation and agreement between parties, requiring the Court to apply section 34(3) jurisdiction to dispose of proceedings by consent rather than on merit.
- The “substantially the same development” requirement under section 4.55 is satisfied where modifications do not change the development’s nature, floor area, floor space ratio, site coverage, or landscaped area.
- Modification applications may approve changes to parking provisions, including conversion of open parking to covered carports, where the substantive character of the consent remains unchanged.
- Proper notification and absence of public submissions support approval of modifications under section 4.55.
Why It Matters
This decision illustrates the role of conciliation conferences in resolving development appeals where the parties can reach agreement on the merits. By reaching consensus on amended plans and conditions, Zapeco and Inner West Council avoided lengthy contested proceedings while demonstrating to the Court that the jurisdictional prerequisites for modification were satisfied. The Court’s application of section 34(3) reflects a framework that respects agreed outcomes when the Court is satisfied they fall within its proper exercise of power.
For developers and councils, the decision confirms that relatively modest changes to parking arrangements—such as adding weather protection to parking spaces—can constitute permissible modifications without triggering the requirement for a fresh development application. The decision signals that the “substantially the same development” test is not rigid; modifications that preserve the overall character, density, and environmental footprint of a consented development are likely to qualify, provided proper notification procedures are followed and no third-party objections arise.
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