Having your development application (DA) refused by the Council can feel like a dead end. You’ve invested time, money, and vision into your project, only to be told “no.”
But a refusal doesn’t have to be the final word.
A recent case in the Land and Environment Court of NSW shows a clear path forward. It involved a row of heritage shop-top houses in Mascot, where the owner’s plans were refused twice by the Council before finally being approved by the Court.
This story is a powerful example of how the planning system allows for negotiation and amendment to find a solution that works.
The Situation: A Common Challenge
The property owner wanted to renovate and extend a row of three heritage-listed buildings on Botany Road, Mascot, into a mixed-use development with shops below and apartments above.
First Attempt: The Council refused the initial application.
Second Attempt: The owner revised the plans and submitted a review application. The Council refused it again.
The Appeal: Left with no other option, the owner appealed to the Land and Environment Court.
This is a situation many property owners find themselves in. The key is what happens next.
The Turning Point: Finding Common Ground
Instead of heading straight to a costly and uncertain court hearing, the Court arranged a conciliation conference. Think of this as a structured negotiation, led by a Commissioner from the Court, to see if the owner and the Council can find a way to make the project work.
In this case, the owner used this opportunity to go back to the drawing board one more time. They worked with their architects and consultants to create a new set of plans that specifically addressed the Council’s main concerns.
What Changed? Making the Project “Right”
So, what did the owner change to get the Council to agree? The amendments were all about respect and refinement:
A Better Heritage Outcome: They reduced the amount of demolition to save more of the original building fabric and redesigned new elements to better complement the old.
A Smaller, Less Imposing Design: They lowered the overall height, set the top floor further back from the street so it’s less visible, and refined the roof shape to reduce the building’s bulk.
Improved Character: They redesigned the shopfronts to be more in keeping with the heritage style and reduced the number of street entrances for a cleaner look.
These changes showed the Council that the owner was listening and was serious about preserving the character of the area while still pursuing a viable development.
The Outcome: How the Court Sealed the Deal
Because the owner and the Council reached a full agreement based on the new plans, the Court’s job became straightforward. The Commissioner didn’t need to decide who was “right” or “wrong” in the original dispute.
Instead, the Court simply checked that:
The agreed-upon project was legal (e.g., it met height limits, zoning rules, and heritage policies).
The Council had the authority to enter into the agreement.
Satisfied on both counts, the Court made it official: the appeal was successful, and the development was approved.
Key Takeaways for Your Project
If you are facing a DA refusal or are worried about one, this case offers several important lessons:
Don’t See a Refusal as the End. The planning system is often a process of negotiation. An initial “no” can become a “yes” with the right changes.
Be Prepared to Adapt. The willingness to amend your plans is your greatest asset. Listen to the feedback from Council and be ready to refine your design.
The Court is a Forum for Agreement. Many people think of “going to court” as a battle. In the Land and Environment Court, the goal is often to facilitate a settlement, not to have a winner and a loser.
Expert Advice is Crucial. The successful outcome here relied on skilled architects and heritage consultants who could translate the Council’s concerns into practical design solutions. Having the right team is essential.
In a Nutshell
The journey from refusal to approval for the Mascot shops shows that persistence and a collaborative approach can pay off. By engaging positively with the process and making thoughtful amendments, you can overcome a DA refusal and get your project back on track.
Disclaimer: This article is for general information purposes only and does not constitute legal advice. You should seek independent professional advice for your specific circumstances.
