Cuddihy v Sutherland Shire Council

[2025] NSWLEC 1713

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cuddihy v Sutherland Shire Council [2025] NSWLEC 1713

Hearing dates:

Conciliation conference on 24 September 2025

Date of orders:

30 September 2025

Decision date:

30 September 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Consent No. DA24/0015 is modified in the terms set out in Annexure A.

(3) Development Consent No. DA24/0015, as modified by the Court, is set out in Annexure B.

Catchwords:

MODIFICATION APPLICATION – dwelling house – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.55, 8.7

Land and Environment Court Act 1979 (NSW), ss 34, 34AA

Environmental Planning and Assessment Regulation 2021 (NSW), s 113

Category:

Principal judgment

Parties:

Mark Cuddihy (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Madison Marcus Law Firm (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2025/171919

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Sutherland Shire Council, of Mark Cuddihy’s request to modify Development Consent DA24/0015 at 414 Willarong Road, Caringbah South, Lot 621 DP 220895. Modification application MA25/0023 requests an extension of the roof over the first floor balcony, and the installation of new windows.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (NSW) (EPA Act).

3. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 24 September 2025. I presided over the conciliation conference, at which the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and modifying the consent in accordance with the modification application.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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 of the EPA Act to modify the development consent that was originally granted consent by the Court.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified to the Court. From this I note the following points.

6. The parties submit, and I accept that the proposed modification is of minimal environmental impact pursuant to s 4.55(1A)(1) of the EPA Act. The proposed modification results in no unacceptable or significant environmental impacts to the site or adjoining properties.

7. I must be satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted. In this regard I note that the development remains a single dwelling house with no changes to gross floor area, general height and building form, but extends a portion of the approved pitched roof over the first floor balcony, with new windows installed. On this basis I am satisfied that the development, as modified, will be substantially the same as the development for which consent was originally granted.

8. The modification application was adequately notified from 25 February to 12 March 2025. No submissions were received during this time, and the requirements of EPA Act s 4.55(1A)(c) and (d) are met.

9. Finally, based on the information contained in the Statement of Environmental Effects by Planik dated February 2025, the amended drawings and the parties’ joint submission on jurisdictional prerequisites, I am satisfied that all matters referred to in the EPA Act s 4.15(1), as are of relevance to the development the subject of this application, have been considered, as required by EPA Act s 4.55(3) and that all jurisdictional prerequisites have been met.

10. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

11. The Court notes:

1. The respondent has agreed to the applicant amending the Modification Application No. MA25/0023, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), to rely on the following plans:

Drawing / Plan	Issue	Date	Prepared or Drawn By
Dwg No. 000 – Cover Page	MA-03	13 August 2025	Scard Design
Dwg No. 100 – Site Plan	MA-03	13 August 2025	Scard Design
Dwg No. 101 – Site Management Plan	MA-03	13 August 2025	Scard Design
Dwg No. 110 - Garage Floor & Roof Plan	MA-03	13 August 2025	Scard Design
Dwg No. 111 – Ground Floor Plan	MA-03	13 August 2025	Scard Design
Dwg No. 112 – First Floor Plan	MA-03	13 August 2025	Scard Design
Dwg No. 113 – Roof Plan	MA-03	13 August 2025	Scard Design
Dwg No. 120 – Floor Area Calculations	MA-03	13 August 2025	Scard Design
Dwg No. 121 – Landscaped Area Calculations	MA-03	13 August 2025	Scard Design
Dwg No. 200 – Sections 1-2, Shade Structure Elevations	MA-03	13 August 2025	Scard Design
Dwg No. 201 – Section 3	MA-03	13 August 2025	Scard Design
Dwg No. 203 – Section 4	MA-03	13 August 2025	Scard Design
Dwg No. 204 – Section 5	MA-03	13 August 2025	Scard Design
Dwg No. 300 – North & East Elevations	MA-03	13 August 2025	Scard Design
Dwg No. 301 – South & West Elevations	MA-03	13 August 2025	Scard Design
Dwg No. 302 – South Elevation (Context)	MA-03	13 August 2025	Scard Design
Dwg No. 400 – Window & Door Schedule	MA-03	13 August 2025	Scard Design
Dwg No. 401 – Basix Specifications	MA-03	13 August 2025	Scard Design
Dwg No. 500 – Perspective Views	MA-03	13 August 2025	Scard Design
Dwg No. 501 – Context Perspectives	MA-03	13 August 2025	Scard Design
Dwg No. 600 – Winter Shadows - 22 June	MA-03	13 August 2025	Scard Design
Dwg No. 602 – Equinox Shadows - 23 Mar/Sept	MA-03	13 August 2025	Scard Design
Dwg No. 603 – Summer Shadows - 22 December	MA-03	13 August 2025	Scard Design
Basix Certificate No A1731430_04	MA-03	12 August 2025	Damian Scard

12. The Court orders:

1. The appeal is upheld.

2. Development Consent No. DA24/0015 is modified in the terms set out in Annexure A.

3. Development Consent No. DA24/0015, as modified by the Court, is set out in Annexure B.

E Washington

Commissioner of the Court

Annexure A (212 KB, pdf)

Annexure B (335 KB, pdf)

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Decision last updated: 30 September 2025