Australia, Aug. 2 -- New South Wales Land and Environment Court issued text of the following judgement on July 2:

1. COMMISSIONER: This appeal concerns an application to modify development consent DA-2017/484 (the consent). The consent approved alterations and additions to an existing dwelling, including a first floor addition and the carrying out of associated works at 240 Edinburgh Road, Castlecrag.

2. The Modification Application (DA/2017/484/D) seeks consent for the following modifications:

Modification of condition 1,

* Deletion of proposed skylights and first floor window,

* Internal alterations and additions to the dwelling,

* First floor extension, roof, terraces and associated works.

3. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). 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.

4. At 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 25 June 2024. 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.

5. 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.

Other Modifications: s 4.55(2) of the EPA Act.

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

6. The parties' decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify Development Consent No. DA-2017/484. The Modification Application is made pursuant to s 4.55(2) of the EPA Act. That provision contains four preconditions. The first is that the consent authority must be satisfied that the development remains substantially the same development as that approved in the consent.

7. 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:

1) Quantitatively the modification application results in a development which remains a single residential dwelling.

2) The modification application does not propose any material change to the use, overall appearance, scale or form of the proposed development.

8. I am satisfied that on the basis argued by the applicant, and agreed by the Respondent, 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).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197be751840e9041e4363868)

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