Australia, Aug. 16 -- New South Wales Land and Environment Court issued text of the following judgement on July 16:

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Modification Application 2021/399/A (the Modification Application). The Modification Application seeks to modify development consent DA/2021/399 which granted approval for the demolition of an existing dwelling and construction of a new two-storey dwelling, basement garage, swimming pool, landscaping and associated works at 70 Linden Way, Castlecrag (Lot 3 in DP 23276).

2. The Modification Application seeks consent for the following changes:

1) Increase the gross floor area;

2) Make alterations to the ground and first floor;

3) Modify landscaping;

4) Revise the basement layout; and

5) Incorporate a lift and a roof top garden.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the Modification Application pursuant to s 4.55(2) of the EPA Act.

4. Following the conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (LEC Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 10 June 2025. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference. The agreement is based on an amended Modification Application which includes an increase in setback at the ground floor level, a reduction in the size of the proposed roof terrace and the extend of building elements on the roof level.

Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' signed agreement if the Court could have made that decision in the proper exercise of its functions. The preconditions relevant to the exercise of the Court's power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement. In that regard, I note the following matters.

Jurisdictional preconditions to consent

5. The jurisdictional prerequisites in s 4.55(2) of the EPA Act include:

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if-

(a) it is satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with-

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19806f327df706696cad43a0)

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