Keldoulis v The Council of the City of Sydney

Representation: Counsel:
E Whitney (Solicitor)(Applicant)
A Simpson (Solicitor)(Respondent)
Solicitors:
Mills Oakley (Applicant)
Council of the City of Sydney (Respondent)

File Number(s): 2025/338718

Publication restriction: Nil

Judgment

1. COMMISSIONER: The Applicant appeals against the conditions of consent of Modification Application No D/2022/274/J (MA) imposed by the Council of the City of Sydney (Council) as part of its approval to modify Development Consent No D/2022/274 (Original DA). The Original DA granted consent to alterations and additions to the commercial development at 16-18 Teggs Lane, Chippendale NSW 2008 being the whole of the land in Lot 11 Deposited Plan 1104505 (Site).

2. The MA seeks amendments to the design of two of the windows on the Level 1 portion of the Teggs Lane (northern) elevation from semi-arched windows to rectangular windows.

3. The Applicant appeals pursuant to s 8.9 of the EPA Act.

4. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

5. The statutory power or function to be exercised in determining the proceedings is s 4.55(1A) of the EPA Act.

6. The Site is zoned MU1 – Mixed Use pursuant to s 2.3 and the Land Use Table of Sydney Local Environmental Plan 2012 (SLEP 2012).

7. The Site is rectangular in shape, with a site area of approximately 316.5m2. The ground level around the Site slopes from Balfour Street downwards to the west, with the lowest point at the north-western corner on Teggs Lane being approximately 1.15m lower than at the corner of Balfour and Meagher Streets.

8. The Site has frontages to Teggs Lane along its northern boundary, Balfour Street along its eastern boundary and Meagher Street along its southern boundary. The Site adjoins a commercial (former warehouse) building to the west at 12-14 Meagher Street Chippendale.

9. The Site presently comprises a three storey commercial building with an upper level terrace. The existing building is a former warehouse building circa 1914, with the previous use being a commercial office. The existing building has onsite ground floor car spaces with vehicle access via Teggs Lane.

10. The Site is located within the Chippendale Heritage Conservation Area, and is identified as a contributory building in the Sydney Development Control Plan 2012 (SDCP 2012). The Site is not a listed heritage item pursuant to cl 5.10 of SLEP 2012.

11. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 27 November 2025. I presided over the conciliation conference.

12. At the conciliation conference, 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 parties agreeing to delete Condition (2A) in the MA, and Council agreeing to a redesign of the window, the subject of these proceedings. As a result, the Court will uphold the appeal and approve the amendment of the MA.

13. 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. The parties’ decision involves the Court exercising the function under s 4.55(1A) of the EPA Act to uphold the appeal and approve the amendment to the MA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings, and explained how they have been satisfied as set out below:

14. On 30 June 2025 the Applicant lodged the MA which proposed to modify the DA as set out above.

15. On 21 July 2025 the Respondent’s Local Planning Panel held a meeting and determined the MA was partly approved, subject to the conditions of consent set out in the Notice of Determined of the same date (Class 1, Tab 3), as set out below in summary:

(a) Approve the conversion of the level 1 central window opening on the northern elevation to a rectangular opening; (b) Refuse the conversion of the level 1 western window opening on the northern elevation to a rectangular opening; and (c) In refusing the proposal to amend the design of the level 1 western window opening on the northern elevation, the Council inserted Condition (2A) (Level 1 Northern Window Openings) in the DA (Class 1, Tab 3).

3. These proceedings seek to remove Consent Condition (2A) and to approve the amendment of the level 1 window opening to the western side of the northern (Teggs Lane) elevation from a semi-arched window to a rectangular window.
4. The parties have reached agreement by agreeing to the rectangular window, but surrounding it with the features of a semi-arched window, as depicted in the extract of the architectural drawings below:

Extract from Plan DA301 Rev L Elevations North & West by Smark Design Studio dated 4 November 2025, attached to s 34 Agreement, Tab 2 – refer to the notation on the Plan in Green

5. The parties agree, having taken into account the provisions of s 4.55(1A), 4.55(3) and s 4.15(1) of the EPA Act, that the proposed modification represents a minor amendment to the overall development scheme. The assessment of environmental impact is informed by the MA and the Planning Statement prepared by Urbis dated 26 June 2025 (Class 1 Tab 4) which conclude that the proposed modification is of minimal environmental impact for the following reasons:

(a) The modification involves only a minor change to one window on Level 1 of the Teggs Lane façade, in an area already approved for alteration; (b) The approved building height and gross floor area remain unchanged; (c) The window will remain in the same position, and its size, scale and proportion are consistent with the approved windows; and (d) Given the very limited scope and nature of the change, the proposal does not give rise to any additional environmental impacts.

6. Section 4.55(1A)(b) requires the Court exercising the function of the consent authority to be satisfied that the consent as modified is substantially the same development as the development for which consent was original granted. The result of the comparison between the original consent and the consent as modified must be a finding that the development is ‘essentially’ or ‘materially’ the same as the approved development (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 (‘Arrage’)). Though the manner in which judicial decisions have interpreted the test in s 4.55(1A)(b) may guide the meaning of the provision, they are not a substitute for the text of the legislation. The legislation remains as stated in the statutory provision that the modified development ‘is substantially the same development’ as the originally approved development (Arrage at [18]-[19]). The MA does not alter the building height, gross floor area, use or overall built form, and does not introduce any new qualitative or quantitative assessment issues. Accordingly, the Court can be satisfied that the MA as amended remains substantially the same of the Original DA.
7. Section 4.55(1A)(c) of the EPA Act: The MA was not required to be notified. Council formed the view that, having regard to its scale, character and operation, the proposed modification was likely to have minimal or no impact. Between 5 November 2025 and 21 November 2025 the Amended MA was notified. One submission was received which concerned the ongoing impacts of construction to the local area. This issue had already been raised and addressed in the Conditions to the Original DA, including Conditions 5, 21, 27, 33a, 38 and 40.
8. Pursuant to s 4.55(3) of the EPA Act, the MA as amended has been considered against:

(a) The matters referred to in s 4.15(1) of the EPA Act that are relevant to the proposal; and (b) The reasons given by the consent authority for the grant of the Original DA.

9. Having considered the above, the parties are satisfied that the MA as amended falls within the reasons given by the Council for the Original DA.

10. The parties agree the Conditions of Consent in Annexure A, and agree that the conditions are appropriate and lawful having regard to the provisions of ss 4.16 and 4.17 of the EPA Act and the relevant legal principles.

11. For the reasons set out above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

12. 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. I shall uphold the appeal and approve the MA as amended.

Notes

16. The Court notes that:

17. Council of the City of Sydney, as the relevant consent authority, has agreed, under s 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending the Modification Application No D/2022/274/J, in accordance with the following documents:

(a) Amended Floor Plans (Rev N) prepared by Smart Design Studio dated 4 November 2025; and (b) Amended Elevations – North & West (Rev L) prepared by Smart Design Studio dated 4 November 2025.

Orders

17. The Court orders:

18. The appeal is upheld.

19. Modification Application No D/2022/274/J, for the alteration of two of the windows on the Level 1 portion of the Teggs Lane (northern) elevation, from semi-arched windows to rectangular windows on Lot 11 in Deposited Plan 1104505 known as 16-18 Meagher Street Chippendale NSW 2008 is approved.

20. Development Consent No D/2022/274 is modified in terms set out in Annexure A.

21. Development Consent No D/2022/274 as modified by the Court is set out in Annexure B.

M Peatman

Acting Commissioner of the Court

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Annexure A (217 KB, pdf)

Annexure B (639 KB, pdf)