Background
J&R Developers appealed Liverpool City Council’s June 2024 refusal of DA-459/2023 concerning land at 35 and 45 Ninth Avenue, Austral. The application, as originally lodged, proposed a residential subdivision with integrated housing, including 39 residential lots, dwellings, secondary dwellings and associated civil works.
After an earlier conciliation conference ended without resolution, the parties reached agreement before the listed hearing and attended a further conciliation conference on 4 September 2026. The amended application included additional information and revised stormwater arrangements. The parties supplied a signed agreement and an agreed jurisdictional statement.
The Court’s Holding
Commissioner Targett upheld the appeal and, under s 34(3) of the Land and Environment Court Act 1979 (NSW), granted development consent to the amended DA-459/2023, subject to Annexure A conditions. The orders describe the approved development as subdivision into three Torrens title lots over two stages, with vegetation removal, road construction and associated civil works.
The Commissioner was satisfied that the agreed outcome was one the Court could make in the proper exercise of its functions. The Court accepted that the relevant contamination, catchment, sustainability, zoning, lot-size, dwelling-density, height, vegetation, infrastructure and EPA Act considerations had been addressed through the supporting material and conditions. 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 if the agreed decision is within the Court’s lawful functions.
- Conditions addressing contamination and infrastructure can support approval of an amended development application.
- The applicant must pay the Council’s costs thrown away by the application amendments, in an agreed or assessed amount.
Why It Matters
The decision illustrates the Land and Environment Court’s role in giving effect to negotiated planning outcomes under s 34(3), rather than independently resolving the original merits dispute once the statutory test is met.
For proponents and councils, it also highlights the importance of documenting amended plans, technical material and agreed conditions sufficiently to establish that a consent can lawfully be granted.