SLD Development Eleven Pty Ltd v Sutherland Shire Council

Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170
McMillan v Taylor (2023) 111 NSWLR 634

Category: Principal judgment

Parties: SLD Development Eleven Pty Ltd & TYD Sutherland Holding Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation: Counsel:
M Harker (Applicant)
J Amy, solicitor (Respondent)
Solicitors:
Mills Oakley (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 2025/53619

Publication restriction: No

JUDGMENT

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 MA24/0272 (the Modification Application). The Modification Application seeks to modify development consent DA18/0145 which granted approval for demolition of existing structures and construction of a residential flat building at 24 Belmont Street and 681-683 Old Princes Highway, Sutherland NSW 2232 (Lot 2 and 3 in DP 12701 and Lot 1 in DP 15909).

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

3. A reduction in the number of units to 48 (previously 50).

4. An increase in the total gross floor area by 28.74m2 to a total of 4,066.97m2.

5. An increase in the overall height of the building to 20.9m.

6. Changes to ceiling heights, and floor levels to achieve headroom clearances for basement parking levels.

7. Lowering the lowest basement level.

8. An increase in the footprint of basement 3 level by approximately 49m2.

9. Piers of basement level to be provided externally to the basement footprint.

10. Amended driveway ramps to suit the new floor levels of basement levels.

11. Amended outdoor communal open space area layout and design.

12. 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.

13. 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 July 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.

14. 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

6. The Modification Application was made pursuant to s 4.55(2) of the EPA Act.

7. The pre-requisites 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.

Substantially the same development: s 4.55(2) of the EPA Act

8. The parties submit, and I accept, that the development to which the consent as proposed to be as modified relates is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified). In forming that view, I have had regard to the following:

9. in terms of a qualitative and quantitative assessment, the proposed modifications do not alter critical elements of the original development such to require a new development application.

10. The modifications are minor and do not introduce any new uses, increase density, or alter the approved land use or intensity of development.

11. I am satisfied that on the basis of the amendments made by the Applicant, that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified).

Consultation: s 4.55(b) of the EPA Act

10. The second jurisdictional requirement under s 4.55(2)(b) of the EPA Act relates to consultation with relevant approval bodies.

11. The Modification Application is not integrated or designated development and there are no applicable requirements to consult external authorities.

12. The requirements of s 4.55(2)(b) of the EPA Act are met.

Notification: s 4.55(2)(c) of the EPA Act

13. The third jurisdictional requirement under s 4.55(2)(c) of the EPA Act relates to the notification of the Modification Application. The Modification Application was notified in accordance with the requirements of the EPA Act, the Environmental Planning and Assessment Regulation 2001 (EPA Regulation). No submissions were received.

Consideration of submissions: s 4.55(2)(d) of the EPA Act

14. The fourth jurisdictional requirement under s 4.55(2) of the EPA Act is the requirement for the consent authority to consider any submission made concerning the Modification Application. As no submissions were received this requirement is otiose.

Relevant matters in s 4.15(1) of the EPA Act: s 4.55(3) of the EPA Act

15. Pursuant to s 4.55(3) of the EPA Act, in determining an application for modification of a consent under this section, the consent authority must take into consideration the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application. My consideration of those matters is detailed below.

16. The owner of the land, South Summit Group Pty Ltd, has given its consent to the lodgement of the application. The modification application has been amended to remove from it any proposed works on adjoining land, consequently no other owner’s consent is now required.

17. The consent incorporated a requirement for the development to be implemented in accordance with the applicable BASIX certification. A revised BASIX Certificate has been prepared in respect of the Modification Application and is current. The requirements of s 100(3) of the EPA Regulation are met.

18. A design verification statement was submitted with the modification application satisfying the requirements of s 102 of the EPA Regulation.

19. In considering the relevant matters under s 4.55(3) of the EPA Act, I accept the agreed submission of the parties that the remaining matters are matters of which the Court is not required to address under s 34(3): Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170, at [215]; McMillan v Taylor (2023) 111 NSWLR 634, at [62]-[65]. I record that these matters are addressed in the parties’ jurisdictional note which demonstrates each are complied with or do not warrant the refusal of the Modification Application.

20. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

21. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders.

Notes

22. The Court notes that:

23. Sutherland Shire Council, as the relevant consent authority, has agreed, under section 113 of the Environmental Planning and Assessment Regulation 2021*,* to the Applicant amending Modification Application No. MA24/0272 to include the following documents (‘Amended Modification Application’):

| DOCUMENT | DATE | | Variation Justification Request, prepared by Barker Ryan Stewart | 16 April 2025 | | Revised Stormwater Plans, prepared by Smart Structures Australia • D00 – Cover Sheet, Legend & Drawing Schedule (Rev B) • D05 – Basement 3 Stormwater Drainage Plan (Rev E) – 21 October 2024 • D06 – Basement 2 Stormwater Drainage Plan (Rev D) – 21 October 2024 • D07 – Basement 1 Stormwater Drainage Plan (Rev D) – 21 October 2024 • D08 – Ground Floor Stormwater Drainage Plan (Rev G) – 1 July 2025 • D20 – Stormwater Drainage Sections and Details Sheet 1 (Rev C) – 10 September 2024 • D21 – Stormwater Drainage Sections and Details Sheet 2 (Rev B) – 6 September 2024 • D25 – OSD Design and Computation Details Sheet 1 (Rev B) – 31 January 2025 • D26 – OSD Design and Computation Details Sheet 2 (Rev C) – 11 September 2024 • D27 – OSD Design and Computation Details Sheet 3 (Rev A) – 11 September 2024 • D30 – Erosion and Sediment Control Plan (Rev A) – 15 August 2024 • D31 – Erosion and Sediment Control Details (Rev A) – 15 August 2024 | Various dates | | Architectural Plans prepared by Nordon Jago Architects • DA.300D – Elevation East (Rev D dated 8 July 2025) • DA.301D – Elevation West (Rev D dated 8 July 2025) • DA.800A – Front Fence Height Diagram (Rev A dated 3 July 2025) | Various dates |

Orders

23. The Court orders that:

(1) The appeal is upheld

(2) Modification application MA24/0272 for the modification of development consent DA18/0145 at 681-683 Old Princes Highway, Sutherland NSW 2232 is approved. Development Consent No. DA18/0145 is modified in the terms set out in Annexure ‘A’.

(3) Development Consent No. DA18/0145, as modified by the Court, is set out in Annexure ‘B’.

D Dickson

Commissioner of the Court

Annexure A (331 KB, pdf)

Annexure B (461 KB, pdf)

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