Background
Christian Fischer appealed under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) against Central Coast Council’s deemed refusal of DA/1695/2025. The application sought to demolish the existing dwelling and ancillary structures at 38 Bangalow Street, Ettalong Beach, and construct an attached dual occupancy.
The parties attended a conciliation conference on 15 July 2026 and reached agreement that consent should be granted, subject to conditions. Amended architectural, landscape and stormwater plans addressed matters raised in the Council’s Statement of Facts and Contentions, including bulk and scale, façade treatment, setbacks, privacy screening, landscaping and stormwater management.
The Court’s Holding
Acting Commissioner Harding upheld the appeal and granted development consent subject to the conditions in Annexure A. Under s 34(3) of the Land and Environment Court Act 1979 (NSW), the Court was satisfied that the agreed outcome was one it could make in the proper exercise of its functions and was therefore required to dispose of the proceedings in accordance with the parties’ agreement.
The Court accepted that the dual occupancy was permissible in the R1 General Residential zone and that relevant planning requirements were satisfied. These included flood provisions, with habitable floor levels set at the probable maximum flood level of RL 5.33 m AHD; acid sulfate soil requirements; essential services; BASIX requirements; coastal-management considerations; and land-contamination considerations. No public submissions had been received. The Court expressly noted that it did not undertake a merits assessment of the discretionary matters under s 4.15 of the Environmental Planning and Assessment Act.
Key Takeaways
- A deemed-refusal appeal can be resolved through a conciliation agreement where the agreed consent is legally available to the Court.
- Amended plans and consent conditions resolved the parties’ concerns about design, privacy, landscaping and stormwater.
- The Court’s order was based on the statutory conciliation mechanism, not an independent merits assessment under s 4.15.
Why It Matters
The decision illustrates the Land and Environment Court’s role in giving effect to negotiated Class 1 outcomes once it is satisfied that the statutory jurisdictional requirements are met. For development applicants and councils, it also shows how targeted amended plans and conditions can resolve contested planning issues during conciliation.