Background
Dangar (Penrith) Pty Ltd sought consent to demolish existing structures and build a single-storey dwelling above a one-level basement, with associated driveway, landscaping and site works at 72A Duntroon Street, Hurlstone Park. Canterbury-Bankstown Council refused DA-294/2026 on 9 April 2026.
The developer appealed in the Court’s Class 1 jurisdiction. Following mediation, the parties agreed on an amended proposal and requested a conciliation conference. The amendments reduced and redesigned the basement and included an acid sulfate soils management plan. Three public submissions had raised concerns about construction noise, excavation and tree removal.
The Court’s Holding
Commissioner Targett upheld the appeal and granted development consent for the amended development, 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’ agreed outcome once satisfied that it was a decision the Court could properly make.
The Commissioner was satisfied of that requirement. The site was in the R2 Low Density Residential zone and the proposal was permissible with consent; it complied with the applicable building-height and floor-space-ratio standards. The Court also accepted the parties’ positions on heritage, acid sulfate soils, earthworks, stormwater, essential services, contamination suitability and the consideration of public submissions.
The Court stressed that, in making consent orders to implement the agreement, it did not conduct a merits assessment of the issues originally disputed between the parties.
Key Takeaways
- A Class 1 planning appeal may be resolved through a conciliation agreement where the agreed decision is one the Court could lawfully make.
- Amendments reducing basement scale and addressing acid sulfate soils can be incorporated into a development application during the appeal process.
- Consent orders under s 34(3) do not amount to a fresh merits determination of the parties’ original disputes.
Why It Matters
The decision illustrates the Land and Environment Court’s statutory role after parties settle a planning appeal: the Court must independently confirm that the agreed approval is within its proper functions, but must then make orders giving effect to that agreement.
For developers and councils, it also shows the value of addressing technical and design issues through amended plans and supporting reports before conciliation, including issues arising from heritage controls, excavation and acid sulfate soils.