A recent decision from the Land and Environment Court of NSW (South Cronulla Property Group v Sutherland Shire Council) provides a practical example of how a refused modification application can be successfully resolved through conciliation, even where technical issues like increased building height and overshadowing are raised.
Background of the Case
In August 2023, development consent was granted for a mixed-use retail and residential development at 67 Gerrale Street, Cronulla (the Original Consent). The consent included approval for communal open space and plant equipment on the rooftop.
The applicant, South Cronulla Property Group, subsequently lodged a modification application (MA24/0087) in April 2024. After the Council refused the application in May 2025, the applicant filed an appeal with the Land and Environment Court.
The Dispute and the Path to Resolution
The key points of contention in the modification application involved:
Increased Height of Rooftop Elements: The proposal sought to increase the height of the lift overrun and mechanical ductwork above the limits set in a previous modification.
Community Concerns: During notification, submissions were received raising concerns about overshadowing, and noise and odours from the rooftop communal area.
Rather than proceeding to a contested hearing, the parties utilised the court’s conciliation process under section 34 of the Land and Environment Court Act 1979. In a conciliation conference presided over by Commissioner Walsh, the parties reached an in-principle agreement. This was later formalised in a signed section 34 agreement, which the Commissioner was required to uphold provided it was a decision the Court could legally make.
The Court’s Findings on Jurisdictional Requirements
For the agreement to be legally valid, the Court had to be satisfied that certain jurisdictional prerequisites were met. Key findings included:
“Substantially the Same” Development: The Court found that the modified development was “substantially the same” as the original consent, as required by section 4.55(2) of the Environmental Planning and Assessment Act 1979. While the rooftop elements were taller, their location and layout remained largely consistent with the original approval.
Overshadowing: The Court reviewed shadow diagrams and was satisfied that the increased height of the ductwork and lift overrun did not cause unreasonable overshadowing to adjoining properties or the public domain.
Amenity Impacts: Concerns about noise and odours from the rooftop were addressed through:
The strategic location of the communal space on the northern side of the roof.
A physical barrier created by the lift overrun and plant enclosure.
The inclusion of an Acoustic Review as a condition of consent to mitigate potential impacts.
Compliance with Regulations: The Court was satisfied that the modification complied with relevant regulations, including the submission of an updated BASIX certificate and a design verification statement from the original architect confirming the design quality was not diminished.
Exceeding Floor Space Ratio (FSR): The modified development resulted in a slight exceedance of the permitted FSR. Critically, the Court confirmed that for modification applications under section 4.55, an applicant is not required to seek a justification for the contravention under clause 4.6 of the local environmental plan, following established precedent.
Key Takeaway for Developers
This case highlights several important strategic points:
Conciliation is an Effective Tool: The section 34 conciliation process provides a powerful and efficient avenue for resolving disputes without the need for a lengthy and costly court hearing.
Technical Hurdles Can Be Overcome: Potential deal-breakers like increased height and overshadowing can be managed successfully through expert reports (e.g., shadow diagrams, acoustic reviews) and thoughtful design amendments.
Jurisdictional Nuances Matter: The case reaffirms the distinct legal test for modifications, particularly that a contravention of a development standard like FSR does not require a clause 4.6 justification, which can simplify the approval pathway for certain changes.
The outcome demonstrates that with careful preparation and a willingness to negotiate, even complex modification applications can achieve a positive result that addresses both council and community concerns.
The content of this article is intended for general information only and does not constitute legal advice. You should seek specialist legal advice regarding your specific circumstances.
