O'Connor v The Council of the City of Sydney

[2025] NSWLEC 1629

Land and Environment Court

New South Wales

Medium Neutral Citation:

O’Connor v The Council of the City of Sydney [2025] NSWLEC 1629

Hearing dates:

Conciliation conference on 25 August 2025

Date of orders:

30 September 2025

Decision date:

30 September 2025

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Consent No. D/2021/653 for alterations and additions to the existing boarding house, at 382 Moore Park Road, Paddington, is modified in the terms set out in Annexure A.

(3) The terms of the consolidated Development Consent No. D/2021/653 are set out in Annexure B.

Catchwords:

MODIFICATION APPLICATION — modification of development consent for alterations and additions to an existing boarding house — conciliation conference — agreement between the parties — orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), s 4.55

Land and Environment Court Act 1979 (NSW), s 34

Environmental Planning and Assessment Regulation 2021 (NSW), s 64

Cases Cited:

O’Connor v Council of the City of Sydney [2022] NSWLEC 1147

Category:

Principal judgment

Parties:

John O’Connor (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
A Simpson (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Council of the City of Sydney (Respondent)

File Number(s):

2025/104874

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of a modification application to modify the terms of a condition of consent of Development Consent No. D/2021/653 for alterations and additions to the existing boarding house (the proposal), at 382 Moore Park Road, Paddington (the site), by the Council of the City of Sydney (the Council).

2. 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 25 August 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.

3. The parties’ decision involves the Court exercising the function under s 4.55 of the EPA Act to modify the consent granted by the Court (O’Connor v Council of the City of Sydney [2022] NSWLEC 1147) to modify the terms of condition 44. I am satisfied that the proposal is of no or minimal environmental impact pursuant to s 4.55 of the EPA Act.

4. The amended wording of condition 44 now requires the applicant to engage a Fire Safety or Building Surveyor to prepare a Fire and Life Safety Upgrade Report for the development. Any recommendations within the report must be incorporated into the requirements of the Construction Certificate. I accept the Council’s submission that the amended condition will achieve compliance with s 64 of the Environmental Planning and Assessment Regulation 2021, ‘Consent authority may require upgrade of buildings’.

Conclusion

5. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 5 September 2025 and I am satisfied, on the basis of the evidence before me, that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

6. The orders of the Court are:

1. The appeal is upheld.

2. Development Consent No. D/2021/653 for alterations and additions to the existing boarding house, at 382 Moore Park Road, Paddington, is modified in the terms set out in Annexure A.

3. The terms of the consolidated Development Consent No. D/2021/653 are set out in Annexure B.

S O’Neill

Commissioner of the Court

Annexure A (159 KB, pdf)

Annexure B (296 KB, pdf)

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