The Barangaroo Delivery Authority has allowed Lend Lease to lodge modifications to its plans for Barangaroo in contradiction of its own project delivery deed which appears to restrict Lend Lease from applying for residential apartments in the hotel or in the public recreation space.

The document  is on the BDA's contracts register and was confirmed as late as April 2013 by both parties. It has not been rescinded .

The decision to drop apartments in the hotel was taken in  2010 at the height of the furore over the proposed hotel over the water. The clause in the development deed prevented Lend Lease from including apartments in any future plans for the hotel development, then located over the water, or in the public recreation zone – the new proposed location of James Packer's proposed Crown resort.

At the time, both BDA chief executive John Tabart and Lend Lease's director of development, David Hutton, said they had listened to community concerns about the scale and bulk of the hotel and were dropping the apartment component in the hotel, in favour of larger hotel rooms, and apartments elsewhere on the site.

The latest changes to the Barangaroo project – known as  modification 8  – includes the new hotel and casino tower on land, designated as public recreation space.  Approximately 48 per cent of the floorspace in the tower is proposed to be luxury apartments.

A spokesman for the BDA said the provisions in the deed restricting apartments had been overtaken by events.

"The amendment addressed concerns about a private strata residential development over the water and ensured that the authority retained absolute discretion in relation to its approval as land owner of any proposal which might include a residential component.

"This did not, however, prevent the authority from considering the inclusion of residential development in any hotel resort proposal, if appropriate in all the circumstances, and subject to the normal planning approval processes."

The BDA has already given its consent as landholder to Lend Lease lodging the plan which includes the Crown apartments.

A spokeswoman for Lend Lease pointed out that the government had insisted the hotel be moved to land and the apartment component was now necessary to make the casino and hotel viable.

She pointed out there had been 256 public submissions on the hotel over the water, but only 30 about the proposed hotel on land.

The BDA is a statutory body set up to oversee "the orderly and economic development of Barangaroo. It is also charged with developing the public domain so as to encourage its use by the public and to regulate the use of those areas".