Background
MAAS Group Properties Miriam Pty Limited brought a Class 1 development appeal against Dubbo Regional Council’s refusal of consent for a subdivision at 2R Old Dubbo Road, Dubbo. The proposal involved dividing Lot 10 in DP1119436 into 59 residential allotments and one residue lot, with associated earthworks, internal roads, drainage and civil infrastructure.
After conciliation conferences, the parties agreed on an amended proposal addressing issues concerning flooding, Aboriginal cultural heritage, contamination, biodiversity, civil and traffic engineering, and town planning. The changes included raising development above the flood planning level, revising roads and flood-storage works, creating a five-metre no-work zone around an Aboriginal site, increasing separation from a sewer pump station, upgrading Macquarie Street and remediating an asbestos-containing pipe.
The Court considered whether the parties’ agreement was a decision it could properly make under s 34(3) of the Land and Environment Court Act 1979 (NSW). Relevant prerequisites included planning controls for the urban release area, flood-risk requirements, biodiversity offsets, infrastructure arrangements, Aboriginal heritage approvals, bushfire approval and contamination controls.
The Court’s Holding
Commissioner Espinosa was satisfied that the agreed decision was one the Court could have made in the proper exercise of its functions. The Court therefore upheld the appeal and granted development consent for the 60-lot subdivision, subject to the conditions in Annexure A.
The Court did not conduct a merits assessment of the issues originally disputed. Because the parties had reached an agreement under s 34(3), the Court’s task was to confirm that the agreed outcome was legally available and then dispose of the proceedings in accordance with it.
The applicant was also ordered to pay the Council $12,000, excluding GST, for costs thrown away because of the amendments to the development application, payable within 21 days.
Key Takeaways
- A conciliation agreement in a New South Wales development appeal must be implemented if the agreed decision is one the Court could properly have made.
- The amended subdivision proposal addressed flood management, Aboriginal heritage, biodiversity, infrastructure, traffic, bushfire and contamination requirements through revised plans, approvals and consent conditions.
- The Court granted consent without determining the original planning disputes on their merits and ordered the developer to pay the Council’s agreed amendment-related costs.
Why It Matters
The decision illustrates how substantial planning disputes can be resolved through court-supervised conciliation while preserving statutory safeguards. Even where the parties agree, the Court must still be satisfied that jurisdictional prerequisites are met and that the proposed consent falls within its lawful powers.
For developers and councils, the case also highlights the practical consequences of amending a proposal during an appeal: amendments may enable consent by resolving technical objections, but can produce an order for costs thrown away.