Background
Aplus Architecture Pty Ltd appealed the deemed refusal of Development Application 2025/185 for 1–5 Kooringa Road, Chatswood. The amended proposal was to demolish existing structures and construct a residential flat building containing 39 apartments, including seven affordable housing units, with two basement parking levels.
The appeal was brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW). A conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) was held on 11 May and 4 June 2026. The parties subsequently executed an agreement resolving the proceedings.
The Court’s Holding
Acting Commissioner Bilmon upheld the appeal and granted development consent, subject to the conditions in Annexure A. The applicant was ordered to pay the Council’s agreed thrown-away costs of $15,000 under s 8.15(3) of the Environmental Planning and Assessment Act.
The Court held that the parties’ agreed outcome was one it could make in the proper exercise of its functions, as required by s 34(3) of the Land and Environment Court Act. It accepted that the amended application could be approved and that the identified statutory preconditions had been met, including those concerning zoning, affordable-housing incentives, height and floor-space standards, BASIX, contamination, and the applicable housing controls.
The Court stressed that, in giving effect to the s 34 agreement, it had not undertaken a merits assessment of the discretionary matters arising under s 4.15 of the Environmental Planning and Assessment Act.
Key Takeaways
- A s 34 conciliation agreement must be implemented where the agreed outcome is one the Court could lawfully make.
- The 15% affordable-housing component enabled the proposal to use the Housing SEPP incentives for additional height and floor space.
- Consent was conditioned on an updated BASIX certificate and on the affordable dwellings being managed by a registered community housing provider for at least 15 years.
Why It Matters
The decision illustrates the Land and Environment Court’s role in finalising a negotiated planning appeal: it must confirm that jurisdictional and statutory requirements are met, but need not independently determine the development’s discretionary planning merits once a valid s 34 agreement is reached.
It also shows the practical effect of the NSW affordable-housing incentives, which allowed a 1.95:1 floor-space ratio and 22.75-metre height for this project where the underlying low- and mid-rise standards were lower.