Cerno Hurstville Investors No 3 Pty Ltd ATF Apollo Cerno Hurstville Property Trust v Georges River Council

Representation: Counsel:
R Ritchie (Solicitor)(Applicant)
L Melvin (Solicitor)(Respondent)
Solicitors:
Allens (Applicant)
Georges River Council (Respondent)

File Number(s): 2025/318170

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the determination of Modification Application No. MOD2023/0163 to modify Development Consent No. 05/DA-231 (the Original Consent), at 225H Forest Road, Hurstville NSW 2220 legally described as Lot 2 in DP 1157208 (the site).

2. The Original Consent was granted by former Hurstville City Council on 7 September 2005 for “Refurbishment of Hurstville Super Centre with the Addition of Retail Space and Plant Rooms at Roof Level”.

3. The Modification Application, lodged with Georges River Council on 7 December 2023, seeks to modify the Original Consent by amending condition 68 to reinstate that condition in the form in which it existed immediately prior to 20 February 2025, being on terms determined by the Court in Proceedings No. 2012/1008.

4. For completeness, the proposed modification of condition 68 of the Original Consent seeks to alter the regulation of paid parking on the site.

5. It is also relevant to record that a part of the site is also subject to Development Consent No. 204/05 granted by Kogarah City Council (Kogarah Consent). Subsequent to the grant of the Kogarah Consent, Kogarah City Council and Hurstville City Council merged such that the Respondent is now the relevant consent authority for the whole of the site.

6. On 12 September 2024, the Modification Application was amended, to seek modification of condition 68 to be consistent with the wording of condition 31 of the Kogarah Consent.

7. On 19 August 2025, the Applicant commenced these Class 1 proceedings to appeal the Respondent's determination of the Modification Application pursuant to s 8.9 of EPA Act.

8. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 31 October 2025.

9. I presided at the conciliation conference, at which the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and approving the modification to the development consent subject to conditions.

10. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

11. The parties’ decision involves the Court exercising the function under s 4.56 of the EPA Act to approve the modification of a court ordered consent to a development application.

12. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identify the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.55 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement provided to the Court, allowing the orders at [22] to be made.

Environmental Planning and Assessment Act 1979 (NSW)

13. The Modification Application is supported by a Supplementary Town Planning Statement prepared by Urbis dated 29 October 2025 (Planning Statement) that assists the Court in considering whether the development as proposed to be modified is of no or minimal environmental impact (s 4.55(1A)(a) of the EPA Act), and whether that development is the same or substantially the same development as the development for which consent was originally granted (s 4.55(1A)(b) of the EPA Act).

14. I am satisfied that the development as proposed to be modified is of minimal environmental impact, and that it is the same or substantially the same development as the development for which consent was originally granted for the reasons set out in the Planning Statement, summarised below:

15. Firstly, there is no change proposed to the approved built form such as building footprint, building height, gross floor area or the number of car parking spaces or their physical dimensions.

16. Secondly, there is no change proposed to the approved land use for the which the development was approved.

17. Thirdly, there is no requirement to amend the terms of any other consent condition that would result in an additional impact beyond what was contemplated and assessed prior to the granting of the Original Consent.

18. The Modification Application was publicly notified for a period of 14 days in accordance with the Georges River Community Engagement Strategy in accordance with s 4.55(1A)(c) of the EPA Act. No submissions were received. As such, the requirement for the Court to consider those matters at s 4.55(1A)(d) of the EPA Act has no work to do.

Environmental Planning and Assessment Regulation 2021

16. The consent of the owner of the Site accompanies the Modification Application: s 100(1)(i), Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

17. The Original Consent, as now proposed to be modified, includes an additional condition, proposed condition 68A, that requires modification of condition 31 of the Kogarah Consent with effect that condition 31 is to be on the same terms as condition 68 of the Hurstville Consent as proposed to be modified.

18. The Modification Application as lodged with the Respondent, sought to modify Condition 68 of the Consent to alter the regulation of paid parking on the Site.

19. A condition of this kind may be imposed by ss 4.17(b) and (5) of the EPA Act. Modification of the Kogarah Consent would be effected in accordance with s 67 of the EPA Regulation*,* upon the Court making the orders to modify the Original Consent.

Conclusion

20. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

21. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Orders:

22. The Court orders:

23. The appeal is upheld.

24. Development Consent No. 05/DA-231 is modified in the terms in Annexure A.

25. Development Consent No. 05/DA-231 as modified by the Court is Annexure B.

T Horton

Commissioner of the Court

Annexure A (135 KB, pdf)

Annexure B (257 KB, pdf)

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