Background
Neville Edward Killmore appealed Kiama Council’s refusal of Development Application No. 10.2025.135.1 for a new dwelling at 910 Jamberoo Road, Jamberoo, being Lot 33 in DP 605608. The application had been lodged in August 2025, publicly notified without submissions, and refused in December 2025.
The appeal proceeded in the Court’s Class 1 jurisdiction. Before a conciliation conference held on 7 August 2026, the parties agreed that consent should be granted to an amended application, including a preliminary site investigation report. They submitted an agreed jurisdictional statement and proposed conditions of consent.
The Court’s Holding
Commissioner Targett upheld the appeal and granted development consent for the amended dwelling proposal, subject to the conditions in Annexure A. Under s 34(3) of the Land and Environment Court Act 1979 (NSW), the Court was required to give effect to the parties’ agreement once satisfied that it was a decision the Court could properly make.
The Commissioner was satisfied that the proposal met the applicable jurisdictional requirements. It complied with bushfire-planning requirements, was suitable having regard to the site investigation, and was permissible in the RU2 Rural Landscape part of the land. Although the proposal did not comply with the local planning instrument’s dwelling-house standard, the Court accepted the cl 4.6 request: strict compliance was unreasonable or unnecessary and sufficient environmental planning grounds justified the variation.
The Court expressly did not undertake a merits assessment of the issues originally disputed between the parties. Its orders implemented the negotiated outcome rather than resolving those issues after a contested hearing.
Key Takeaways
- A Class 1 appeal may be resolved by conciliation where the agreed result is one the Court could lawfully make.
- A non-compliance with a rural dwelling-house standard can be approved where the cl 4.6 test is satisfied.
- The Court may grant consent subject to conditions while making no merits assessment of the earlier dispute.
Why It Matters
The decision illustrates the Land and Environment Court’s conciliation function in development appeals: agreement does not itself determine the outcome, but it can be made into orders when the Court is satisfied of the statutory preconditions.
It also shows the importance of addressing site constraints and planning controls through supporting material, including bushfire documentation, contamination investigations, and a properly reasoned request to vary a development standard.