Background
Sealark Pty Ltd appealed the deemed refusal of its application for a Torrens title subdivision creating one additional lot at 22B Eastbourne Avenue, Culburra Beach. The land is zoned R2 Low Density Residential under the Shoalhaven Local Environmental Plan 2014.
At a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW), Sealark and Shoalhaven City Council agreed that the appeal should be upheld and the amended application approved subject to conditions. Three objections had been received during notification, and Rural Fire Service general terms of approval were incorporated into the proposed conditions.
The Court’s Holding
Commissioner Walsh held that the parties’ agreed outcome was one the Court could lawfully make and was therefore required by s 34(3) to give effect to it. The Court upheld the appeal and granted consent for the one-lot subdivision, subject to Annexure A conditions.
The Court was satisfied that the relevant jurisdictional prerequisites were met, including essential services, coastal-environment and coastal-use controls, contamination considerations, and koala-habitat requirements. It accepted that the subdivision would have low or no impact on koalas or koala habitat and was not likely to increase coastal-hazard risk. The Commissioner stressed that the Court made no general merits assessment of the proposal.
Key Takeaways
- A Class 1 appeal resolved by conciliation must be disposed of in accordance with the parties’ agreement if it is a decision the Court could properly make.
- The Court must still be satisfied that statutory and planning-instrument preconditions to granting consent are met.
- The approval required the Council to register and publish the development consent within 14 days.
Why It Matters
The decision illustrates the Land and Environment Court’s role in a s 34 conciliation outcome: it does not simply endorse a settlement, but must independently confirm that the legal prerequisites for development consent are satisfied. It also confirms that, once those prerequisites are met, the Court may approve an agreed subdivision without undertaking a broader merits review.