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[2025] NSWLEC 1897
General information, not legal advice.
Land and Environment Court (NSW)
2025-12-17
O’Neill C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Tomtome Pty Ltd v Sutherland Shire Council [2025] NSWLEC 1897
Hearing dates: Conciliation conference on 5 December 2025
Date of orders: 17 December 2025
Decision date: 17 December 2025
Jurisdiction: Class 1
Before: O’Neill C
Decision: The orders of the Court are:
(1) The Modification Application No MA25/0105 made pursuant to section 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) to reconfigure Level 3 floor plate and relocate communal open space to the roof, at 79-81 Gerrale Street, Cronulla, is approved.
(2) Development Consent No DA23/0129 for the construction of a nine-storey residential apartment building as granted by the Court on 17 April 2024 (as modified by MA24/0224 on 14 March 2025) is modified in the terms in Annexure A.
(3) Development Consent No DA23/0129 as modified by the Court is Annexure B.
Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 8.9, 4.55
Land and Environment Court Act 1979 (NSW), s34
Environmental Planning and Assessment Regulation 2021 (NSW), s113
Sutherland Shire Local Environmental Plan 2015
Cases Cited: Tomtome Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1187
Tomtome Pty Ltd v Sutherland Shire Council [2025] NSWLEC 1151
Category: Principal judgment
Parties: Tomtome Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)
Representation: Counsel:
M Bawden (Solicitor) (Applicant)
T Ward (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Pikes & Verekers Lawyers (Respondent)
File Number(s): 2025/205869
Publication restriction: No
COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Sutherland Shire Council (the Council) of Modification Application No MA25/0105 made pursuant to s 4.55(8) of the EPA Act, to modify Development Consent No DA23/0129 to reconfigure Level 3 (Unit 301 is a two bedroom unit and the proposal is for it to be a three bedroom unit), to relocate the communal open space to the roof level, to provide additional accommodation for necessary plant upon the roof and to extend vertical circulation to the roof level (the proposal), at 79-81 Gerrale Street, Cronulla (Lots 1 to 14 in SP3225 and Lots 15 and 16 in Lot SP41002) (the site).
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 on 5 December 2025. I presided over the conciliation conference. 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. 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(8) of the EPA Act to modify the development consent. There are preconditions to the exercise of power to modify a development consent.
| No. | Drawing No | Drawing Title | Prepared By | Date | | Architectural Plans | | 1. | 0012 (Issue B) | BASIX Commitments | IDA Design Group | 17.10.2025 | | 1001 (Issue G) | Basement 2 Floor Plan | IDA Design Group | 17.10.2025 | | 1002 (Issue G) | Basement 1 Floor Plan | IDA Design Group | 17.10.2025 | | 1003 (Issue G) | Ground Floor Plan | IDA Design Group | 17.10.2025 | | 1004 (Issue G) | Level 1- Floor Plan | IDA Design Group | 17.10.2025 | | 1005 (Issue G) | Level 2- Floor Plan | IDA Design Group | 17.10.2025 | | 1006 (Issue G) | Level 3- Floor Plan | IDA Design Group | 17.10.2025 | | 1007 (Issue G) | Level 4- Floor Plan | IDA Design Group | 17.10.2025 | | 1008 (Issue G) | Level 5- Floor Plan | IDA Design Group | 17.10.2025 | | 1009 (Issue G) | Level 6- Floor Plan | IDA Design Group | 17.10.2025 | | 1010 (Issue G) | Level 7- Floor Plan | IDA Design Group | 17.10.2025 | | 1011 (Issue G) | Level 8- Floor Plan | IDA Design Group | 17.10.2025 | | 1050 (Issue G) | Level 3 – Communal Open Space Layout | IDA Design Group | 17.10.2025 | | 1106 (Issue B) | Reflected Ceiling Plan – Level 3 | IDA Design Group | 17.10.2025 | | 1111 (Issue B) | Reflected Ceiling Plan – Level 8 | IDA Design Group | 17.10.2025 | | 2001 (Issue G) | North Elevation | IDA Design Group | 17.10.2025 | | 2002 (Issue G) | South Elevation | IDA Design Group | 17.10.2025 | | 2003 (Issue G) | East & West Elevation | IDA Design Group | 17.10.2025 | | 3001 (Issue I) | Sections | IDA Design Group | 17.10.2025 | | 3002 (Issue I) | Sections | IDA Design Group | 17.10.2025 | | 3006 (Issue I) | Sections | IDA Design Group | 17.10.2025 | | 3007 (Issue I) | Sections | IDA Design Group | 17.10.2025 | | 3008 (Issue I) | Sections | IDA Design Group | 17.10.2025 | | Supporting Documentation | | No. | Document | Date | | 2. | Schedule of Amendments prepared by IDA Design | 17.10.2025 | | 3. | Design Verification Statement prepared by IDA Design | 17.10.2025 | | 4. | BASIX Certificate No. 1360427M_07 and stamped plans prepared by Taylor Smith Consulting | 24.10.2025 | | 5. | NatHERS Certificate No. 0008295780 prepared by Taylor Smith Consulting | 24.10.2025 | | 6. | Owners Consent | 18.10.2025 |
On 17 April 2024, DA23/0129 was determined by the grant of development consent by the Land and Environment Court for demolition of the existing building and ancillary structures, construction of a 9 storey residential flat building containing 12 apartments, 2 levels of basement car parking and associated landscaping (the original development consent, Tomtome Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1187).
On 14 March 2025, a modification to the development consent (MA24/0224) was determined by the Land and Environment Court by way of an approval (Tomtome Pty Ltd v Sutherland Shire Council [2025] NSWLEC 1151). The approved modifications included alterations to floor plates internally and finished floor levels, minor amendments to facade treatment on elevations, addition of a swimming pool on level 3, and alterations to basement parking and layout.
(8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court.
In comparison to the original development consent, the proposed modification works can be described as follows:
A reduction in total amount of internal gross floor area (GFA) assigned for the purpose of the Level 3 communal room by 46m2;
associated increase to GFA assigned to Unit 301 by 43m2 to increase the unit from a 2 bedroom unit to a 3 bedroom unit;
minor adjustment to services and cupboard placement on lower levels;
reorientation of waste room on ground floor and adjustments to north-east entry path to basement;
on Levels 1-8 – minor adjustments to ducting and cupboard placement;
on Level 3 – revised layout of communal open room and removal of kitchen space;
change to the apartment mix, as the original development consent was for 10 x 3 bedroom units and 2 x 2 bedroom units, and the proposal is for 11 x 3 bedroom units and 1 x 2 bedroom unit.
I accept the Council’s submission that the proposal is substantially the same development as the original development consent, within the meaning of s 4.55(2)(a) of the EPA Act. I am satisfied that the relevant provisions under s 4.55 of the EPA Act have been complied with.
The site is zoned E2 Commercial Centre pursuant to the Sutherland Shire Local Environmental Plan 2015. The objectives of the zone, to which regard must be had, are:
• To strengthen the role of the commercial centre as the centre of business, retail, community and cultural activity.
• To encourage investment in commercial development that generates employment opportunities and economic growth.
• To encourage development that has a high level of accessibility and amenity, particularly for pedestrians.
• To enable residential development only if it is consistent with the Council’s strategic planning for residential development in the area.
• To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.
The orders of the Court are:
The Modification Application No MA25/0105 made pursuant to section 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) to reconfigure Level 3 floor plate and relocate communal open space to the roof, at 79-81 Gerrale Street, Cronulla, is approved.
Development Consent No DA23/0129 for the construction of a nine-storey residential apartment building as granted by the Court on 17 April 2024 (as modified by MA24/0224 on 14 March 2025) is modified in the terms in Annexure A.
Development Consent No DA23/0129 as modified by the Court is Annexure B.
S O’Neill
Commissioner of the Court
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Annexure A (192 KB, pdf)
Annexure B (1.24 MB, pdf)
Tomtome Pty Ltd
Sutherland Shire Council [2025] NSWLEC 1897