Nikolaidis secures 10-apartment Elizabeth Bay heritage redesign

The Land and Environment Court handed down orders on 22 October 2026 resolving a dispute over a heritage apartment redesign in Elizabeth Bay, after Nikolaidis Holdings and City of Sydney settled the underlying fight through a section 34 conciliation conference on 26 August 2026. Acting Commissioner Starr AC upheld Nikolaidis Holdings’ appeal against the council’s refusal of a section 4.55 modification for 29-33 Ithaca Road. The site holds The Levens, a contributory building in the Elizabeth Bay and Rushcutters Bay heritage conservation area, already approved for 10 apartments over three and four storeys.

City of Sydney refused the modification application, D/2021/1478/B, on 11 March 2026, after Nikolaidis Holdings lodged it on 22 December 2025 and a notification period running from 23 January to 7 February 2026 drew one submission. Nikolaidis Holdings filed its Class 1 appeal on 24 April 2026. The modification sought removal of internal fabric, including the lobby wall and stairs, and a reconfiguration of the lobby, front entry, garbage room, bicycle parking, storage and selected unit layouts, without changing the building’s external form or apartment count.

Why it matters

The case is a reminder that internal reconfiguration disputes inside heritage conservation areas still run the full Class 1 appeal path when a council refuses a section 4.55 modification, even where the approved envelope and unit count do not change. Nikolaidis Holdings and City of Sydney reached an amended modification application through conciliation rather than a contested hearing, signing their agreement on 9 October 2026 before the court made orders giving effect to it on 22 October 2026. Acting Commissioner Starr AC recorded that the court made no merit assessment of the original planning issues raised by the refusal, confining himself to whether the agreed outcome was one the court could properly make by consent. It follows a run of Sydney Land and Environment Court outcomes this month, including the court’s Warrawee flats consent for Celesteem on 14 October 2026, after a deemed-refusal appeal against Ku-ring-gai Council.

The commissioner said he was “satisfied that the modifications as proposed are minor in nature, and do not constitute new uses.” He found that the consent as modified remained substantially the same development originally granted on 17 May 2023, the threshold a section 4.55 modification has to clear regardless of how long the parties spend negotiating it.

The numbers

The original consent approved alterations and additions converting a part-two and part-three storey building into the current part-three and part-four storey residential flat building with 10 apartments. The modification application did not alter that unit count or storey form; it was confined to internal fabric. Public notification over the amended lobby, entry, garbage room, bicycle parking, storage and unit layout changes ran for just over two weeks and drew one submission, well short of a contested merit fight over the building’s scale or heritage impact.

What’s next

The court’s orders give effect to the signed section 34 agreement, attached as Annexures A and B, modifying development consent D/2021/1478 in the terms of application D/2021/1478/B. Nikolaidis Holdings can now proceed with the reconfigured lobby, entry, garbage room, bicycle parking, storage and selected unit layouts at 29-33 Ithaca Road without a further hearing on the merits. City of Sydney’s heritage planners will keep testing future modification requests in the Elizabeth Bay and Rushcutters Bay conservation area against the same question the commissioner answered here: whether the changes are minor and leave the development substantially the same as what was already approved, or whether they tip into something a council can properly refuse outright.