Chaisumdet v City of Canada Bay Council

Cases Cited: Arrage v Inner West Council [2019] NSWLEC 85
Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31
Chaisumdet v City of Canada Bay Council [2025] NSWLEC 1532
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163
Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333
Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8

Texts Cited: City of Canada Bay Development Control Plan

Category: Principal judgment

Parties: Bounchong Chaisumdet (First Applicant)
Fang Ping Chaisumdet (Second Applicant)
City of Canada Bay Council (Respondent)

Representation: Counsel:
E Whitney (Solicitor) (Applicants)
R McCulloch (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicants)
Pikes & Verekers (Respondent)

File Number(s): 2026/233691

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: These proceedings relate to Modification Application No MOD2026/0076 (MOD) made directly to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), seeking to modify development consent DA2024/0072 (Development Consent) granted by the Court on 25 July 2025 in Chaisumdet v City of Canada Bay Council [2025] NSWLEC 1532 for alterations and additions to the former Blacksmiths’ shop to create a new dwelling house at Lot 46 in DP 270347 known as 123 Peninsula Drive, Breakfast Point NSW 2137 (the Site).

Proposed modifications

2. The proposed modifications are described in the Statement of Environmental Effects prepared by Urban Plan dated 4 June 2026 (at Tab 1 of the Class 1 Application) and the Schedule of Amendments included in the updated Architectural Plans (Rev 4) prepared by Notch Design Studios dated 21 September 2026 in the Amended Application at [48] and are confined to:

3. Internal alterations to the approved layout; and

4. Minor amendments to the approved external materials and finishes, comprising the limited relocation, remodelling, or deletion of selected minor elements.

Conciliation conference

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held onsite on 8 September 2026 and again online on 21 September 2026. I presided over the conciliation conference.

4. The Court commenced the proceedings with an onsite viewing, during which I in the company of the parties’ legal representatives and experts inspected the Site and its immediate surroundings. No significant construction works on the approved development had yet commenced, pending the outcome of these proceedings.

5. The Site forms part of the Breakfast Point Master Planned precinct located within the Canada Bay Local Government Area, approximately 9km west of the Sydney CBD. The built form in the immediate vicinity of the Site comprises multi-level residential flat buildings, stepping down to two storey dwelling houses along the foreshore frontage. A landscaped foreshore reserve with a pedestrian pathway adjoins the northern boundary of the Site and separates it from the Parramatta River. The existing building on the Site is known as the Blacksmiths’ shop and is one of several heritage items remaining on the Breakfast Point precinct which are associated with the former use of the site as Sydney’s AGL gasworks. The Blacksmiths’ shop is a single storey building believed to have been constructed in 1891 by company workmen. It was used as a general workshop and was equipped with a forge and machines which were used to finish rough castings supplied by local foundries.

6. The Site is listed as an item of local heritage significance under Sch 5 of the Canada Bay Local Environmental Plan 2013 (CBLEP) (Breakfast Point – AGL Blacksmiths’ Shop (former) – Local significance – Item no I382). The Site is also located in the vicinity of other heritage listed items. As described at [37], the MOD is accompanied by a Statement of Heritage Impact and a Supplementary Heritage Statement which confirm that the MOD does not have an unacceptable impact on the heritage significance of the item or the items in the vicinity, nor on the heritage value of the Site.

7. The Site is burdened by an easement for public access along the western boundary. Public access along this easement is not formed by a pathway and access to and along the area of the easement is physically restricted by a fence.

8. Two submitters addressed the Court during the onsite viewing. The common themes in the submitters’ submissions more broadly related to the Development Consent and were considered in that decision.

9. The onsite viewing continued with a walk around nearby areas to enable the Court and parties to observe the Site in its context. The purpose of these observations was to demonstrate the limited extent of visual impact of the proposed modifications to the approved development.

10. Following the onsite viewing, the proceedings continued at the existing building on the Site. During this part of the proceedings the parties agreed to amendments to the MOD that were responsive to the Council’s contentions in principle. The agreement was subject to Council’s review of further amended architectural plans and other documents which were to be provided by the Applicant.

Agreement between the parties

11. Following the conciliation conference and subsequent discussions between the Court and the parties, the Applicant prepared the Amended Application at [48], which Council has confirmed satisfactorily resolves the contentions.

12. The parties have reached agreement pursuant to s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to them (being a decision that the Court could have made in the proper exercise of its functions). The parties’ decision is recorded in the signed s 34 agreement filed at the Court on 1 October 2026. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

13. The jurisdictional preconditions that must be satisfied before the Court can properly exercise its functions are addressed in a separate written submission prepared by the parties. In the separate written submission, the parties agree that once the jurisdictional matters identified in the submission are considered, the Court can be satisfied that the jurisdictional prerequisites to the proper exercise of the power to make orders in accordance with the s 34 agreement have been met.

14. As a result of these proceedings, my onsite observations and participation in the conciliation conference and subsequent discussions with the parties, my review of the Amended Application, and my consideration of the jurisdictional preconditions identified by the parties, I accept the parties’ agreement and I am satisfied that the MOD as amended will result in the approved development being substantially the same development as the development for which consent was originally granted. I am also satisfied that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons.

Environmental Planning and Assessment Act 1979 (NSW)

15. The MOD seeks to modify the Development Consent pursuant to s 4.55(8) of the EPA Act as the Development Consent was granted by the Court.

16. Specifically, the parties agree that the MOD seeks that the Court modify the Development Consent by exercising the consent authority’s power under s 4.55(2) of the EPA Act. Thus, to approve the MOD the Court must be satisfied of the following jurisdictional matters:

17. Section 4.55(2)(a) – the development as modified by the MOD is substantially the same as the development for which consent was originally granted before any modification;

18. Section 4.55(2)(c) – the MOD has been notified in accordance with the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) or a development control plan; and

19. Section 4.55(2)(d) – any submissions made concerning the MOD have been considered.

Section 4.55(2)(a)

17. Consistent with Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163, the power to modify a consent is a power ‘to alter without radical transformation’ the consent. Referring to Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280; Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8*;* Arrage v Inner West Council [2019] NSWLEC 85, the result of the comparison between the original consent and consent as modified must be a finding that the development is ‘essentially’ or ‘materially’ the same as the approved development.

18. Though the manner in which judicial decisions have interpreted the test in s 4.55(2)(a) may guide the meaning of the provision, they are not a substitute for the text of the legislation. Consistent with Arrage at [18]-[19] and Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31 at [26]-[27], the test remains as stated in the statutory provision that the modified development “is substantially the same development” as the originally approved development.

19. The text of s 4.55(2)(a) calls for a comparison between the development as proposed to be modified and the development as originally approved. That comparison may be undertaken as a quantitative and qualitative assessment and may include an assessment of the impacts. That comparison is undertaken below.

20. With respect to s 4.55(2)(a), the parties note that in terms of a quantitative and qualitative assessment, the proposed modifications do not alter critical elements of the original development such as to require a new development application. Specifically:

21. The subject amendments if granted, will not alter the nature of the Development Consent, or the general built form of the approved development on the Site. The overall height of the development will remain as existing. There will be no material impact on the public domain, nor on residents of any nearby developments.

22. The proposed modifications retain the approved use. The proposal will remain the same ‘essentially’ or ‘materially’ and will continue to operate as a single dwelling house, as approved in the Development Consent.

23. The modifications are confined to internal alterations to the approved layout and minor amendments to the approved external materials and finishes as noted at [2].

24. I am satisfied, and I agree with the parties, that the development to which the consent as modified relates remains substantially the same development as the development for which consent was originally granted.

Section 4.55(2)(c) – (d)

22. Section 4.55(2)(c) requires the MOD to be notified in accordance with regulations or a development control plan (as applicable). In accordance with s 107(2) of the EPA Reg and s 4.55(2)(c) of the EPA Act, the MOD was notified between 9 July 2026 and 26 July 2026.

23. With respect to s 4.55(2)(d), a total of five submissions were received in response to the public notification. The parties confirm that these submissions have been considered as part of the Respondent’s assessment of the MOD as amended.

Section 4.55(3)

24. Section 4.55(3) of the EPA Act requires the consent authority to consider:

25. the matters in s 4.15(1) as are of relevance; and

26. the reasons given by the consent authority for the grant of the original consent that is sought to be modified.

27. The parties confirm that all of the matters contained in s 4.15(1) of the EPA Act that are relevant to the proposed development have been taken into consideration, and the MOD as amended is acceptable subject to conditions.

28. The parties agree that the reasons for the granting of development consent are those set out in the judgment of Chaisumdet v City of Canada Bay Council [2025] NSWLEC 1532.

29. The parties also agree that, in view of the following paragraphs, the relevant matters specified in s 4.15(1) of the EPA Act have been considered and addressed in the MOD as amended.

Environmental Planning and Assessment Regulation 2021 (NSW)

28. The parties agree relevant provisions of the EPA Reg have been considered and are satisfactory.

29. Section 23(1) of the EPA Reg provides:

(1) A development application may be made by-

(a) the owner of the land to which the development application relates, or

(b) another person, with the written consent of the owner of the land.

30. The MOD was lodged by the Applicant and the Applicant is the owner of the land to which the MOD relates.

31. The subject MOD is BASIX affected development as prescribed under s 100(3) of the EPA Reg and under the State Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP). The MOD is accompanied by a BASIX Compliance Report, prepared by E-Lab and dated 11 August 2026 (at Tab 03 of the Amended Application). The parties agree that the BASIX compliance report confirms the relevant requirements under SB SEPP are satisfied, including in relation to the quantification of embodied emissions.

Canada Bay Local Environmental Plan 2013

32. The parties agree that none of the jurisdictional prerequisites in the CBLEP are a bar to the approval of the MOD as amended because they are preconditions to the grant of the Development Consent. Section 4.55(4) of the EPA Act specifically states the “modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part*, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.”*

Clause 2.1 (“Land Use Zones”)

33. The Site is zoned R3 Medium Density Residential.

Clause 2.3 (“Zone objectives and Land Use Table”)

34. Pursuant to cl 2.3 of the CBLEP*,* the consent authority is required to have regard to the zone objectives. The proposed use of a dwelling house is permissible with consent in the R3 Medium Density Residential zone and is consistent with the objectives of the zone.

Clause 4.3 (“Height of Buildings”)

35. The Site is not subject to a maximum height under CBLEP.

Clause 4.4 (“Floor Space Ratio”)

36. The Site is not subject to a maximum floor space ratio under CBLEP.

Clause 5.10 (“Heritage”)

37. The parties agree that the Site is listed as an item of local heritage significance under Sch 5 of the CBLEP (I382 – AGL Blacksmiths’ Shop (former)). The Site is also located in the vicinity of other heritage listed items. Pursuant to cl 5.10 of the CBLEP, the MOD is accompanied by a Statement of Heritage Impact prepared by Weir Phillips Heritage dated June 2026 (at Tab 03 of the Class 1 Application) which confirms that the MOD, does not have an unacceptable impact on the heritage significance of the item or the items in the vicinity. The MOD is also accompanied by a Supplementary Heritage Statement prepared by Weir Phillips Heritage (at Tab 02 of the Amended Application) which confirms that the MOD as amended, will not have any unacceptable impact on the heritage value of the site. The Applicant has provided additional details of finishes and the treatment of original fabric, which are included in the updated architectural plans in the Amended Application. The parties agree and I concur that the Court can therefore be satisfied that the effect on heritage significance has been considered pursuant to cl 5.10(4) of the CBLEP.

Clause 5.21 (“Flood Planning”)

38. The Site is not located within the flood planning area. Accordingly, cl 5.21 is not enlivened by the Development Application.

Clause 6.1 (“Acid Sulfate Soils”)

39. The Site is identified as being affected by Class 2 Acid Sulfate Soils on the Acid Sulfate Soils Map. The original Development Consent was accompanied by an Acid Sulfate Soils Management Plan, prepared in accordance with the Acid Sulfate Soils Manual. There are only minor changes proposed in the MOD to works in the basement which were approved as part of the Development Consent and the effect of these changes is to reduce the amount of disturbance to the Site from that which was approved in the Development Consent. Thus, the parties agree that the Court can be satisfied that cl 6.1 of the CBLEP has been adequately addressed.

Clause 6.2 (“Earthworks”)

40. Clause 6.2 sets out the matters that the consent authority is required to consider before granting development consent with respect to earthworks. There are only minor changes proposed in the MOD to works in the basement which were approved as part of the Development Consent. The parties agree and I concur that the Court can thus be satisfied that the requirements of cl 6.2 have been adequately addressed.

Clause 6.4 (“Limited Development on Foreshore Area”)

41. Clause 6.4 sets out the matters that the consent authority is required to consider before the grant of development consent with respect to development in the foreshore area. A portion of the rear of the Site is identified as being within the Foreshore Area on the Foreshore Building Line Map. The updated architectural plans in the Amended Application do not alter any works or landscaping approved as part of the Development Consent within the area of the Foreshore Area. The parties agree that the Court can be satisfied that cl 6.4 of the CBLEP has been adequately addressed.

City of Canada Bay Development Control Plan (‘CBDCP’)

42. The parties confirm the provisions of the CBDCP that are of relevance have been taken into account in assessing the MOD as amended.

43. The parties agree that the updated architectural plans in the Amended Application demonstrate a satisfactory planning outcome when measured against the applicable zoning objectives and CBDCP controls and objectives.

Conditions Of Consent

44. The parties have agreed on conditions of consent which are annexed to the s 34 agreement filed at the Court on 1 October 2026.

45. The parties agree and I concur that the conditions of consent can be lawfully imposed having regard to the provisions of ss 4.16 and 4.17 of the EPA Act and relevant legal principles. The only proposed changes to the approved conditions of consent are to update the approved plans and BASIX certificate reference in accordance with the Amended Application.

Conclusion and Notes

46. For the preceding reasons, I am satisfied that the jurisdictional prerequisites to the proper exercise of the Court's power to modify the consent in accordance with the MOD as amended have been met. Having satisfied myself that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, the LEC Act requires me to dispose of the proceedings in accordance with the decision (s 34(3)(a)) and set out in writing the terms of the decision (s 34(3)(b)).

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

48. I note that the Council as the relevant consent authority, has approved under s 38(1) of the EPA Reg*,* to the Applicant amending Development Consent DA2024/0072 in accordance with the following amended plans and documents ("the Amended Application"):

| TAB | DOCUMENT | REVISION | DATE | | 1. | Updated Architectural Plans (Rev 4) prepared by Notch Design Studios | | NS-2534-S-1101 – Site Plan | 4 | 21 September 2026 | | NS-2534-S-2000 – Basement Floor Plan | 4 | 21 September 2026 | | NS-2534-S-2001 – Ground Floor Plan | 4 | 21 September 2026 | | NS-2534-S-2002 – First Floor Plan | 4 | 21 September 2026 | | NS-2534-S-2003 – Roof Plan | 4 | 21 September 2026 | | NS-2534-S-3000 – Elevations North + South | 4 | 21 September 2026 | | NS-2534-S-3001 – Elevations East + West | 4 | 21 September 2026 | | NS-2534-S-3100 – Sections Sheet A & B | 4 | 21 September 2026 | | NS-2534-S-3101 – Section C | 4 | 21 September 2026 | | NS-2534-S-6000 – External Finishes | 4 | 21 September 2026 | | NS-2534-S-7000 – Schedule of Amendments | 1 | 21 September 2026 | | NS-2534-S-7001 – Additional Details | 0 | 21 September 2026 | | 2. | Heritage Advice prepared by Weir Phillips Heritage | 7 August 2026 | | 3. | BASIX Compliance Report prepared by E-Lab | 11 August 2026 |

Orders

49. The Court orders that:

50. The appeal is upheld.

51. The Applicant is granted leave to amend the Class 1 Application with the plans and documents in the Amended Application.

52. Development Consent DA2024/0072 is modified by Modification Application MOD2026/0076 in the terms set out in Annexure A.

53. The terms of the consolidated Development Consent DA2024/0072 as modified by the Court are set out in Annexure B.

J Bilmon

Acting Commissioner of the Court

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Annexure A.202 KB.pdf

Annexure B.410 KB.pdf