Background
Narasimha Nagarajan appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) against Penrith City Council’s refusal of DA25/0679. The application sought demolition of existing structures and construction of a 58-place centre-based childcare facility with at-grade parking at 2–4 George Street, Kingswood.
At a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW), the parties agreed to an amended proposal and proposed conditions of consent. The Council had agreed to the amendments, and no public submissions had been received during notification of the original application.
The Court’s Holding
Commissioner Porter upheld the appeal and granted development consent for the amended development, subject to the conditions in Annexure A. The applicant was also ordered to pay the Council $2,500 in agreed costs thrown away by the amendment.
The Court held that the parties’ agreed outcome was one it could lawfully make under s 34(3) of the Land and Environment Court Act. It was satisfied that the relevant jurisdictional prerequisites had been met, including permissibility under the applicable residential zone, building-height compliance, contamination, water-management, and childcare-space requirements.
The Court stressed that its role on a s 34 agreement was confined to the jurisdictional check. It did not undertake a merits assessment of the issues previously disputed between the parties.
Key Takeaways
- A s 34 conciliation agreement may be implemented where it is within the Court’s power and no jurisdictional constraint prevents the order.
- The Court’s jurisdictional review is not a fresh merits determination of the development proposal.
- The amended 58-place Kingswood childcare centre received consent, with the applicant paying $2,500 in amendment-related costs.
Why It Matters
The decision illustrates the practical effect of conciliation in NSW Class 1 planning appeals: parties can resolve a refusal appeal through an amended scheme and agreed conditions, while the Court verifies the legal basis for the result.
For applicants and consent authorities, it also confirms that amendments made during an appeal can carry costs consequences, even where the amended proposal ultimately secures consent.