Background
Camenzuli Investments Pty Ltd appealed under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) from Penrith City Council’s deemed refusal of DA25/0940. The amended application sought demolition of existing structures, construction of a physio-hydrotherapy centre, at-grade parking and tree removal at 2 Parsons Avenue and 40 Batt Street, South Penrith.
The matter proceeded in the Court’s Class 1 jurisdiction and was the subject of a conciliation conference on 23 July 2026. The parties subsequently agreed that the appeal should be upheld and consent granted subject to agreed conditions. They also agreed that the applicant would pay the Council $8,500 in costs thrown away.
The Court’s Holding
Commissioner Walsh held that the agreed outcome was one the Court could make in the proper exercise of its functions. Under s 34(3) of the Land and Environment Court Act 1979 (NSW), the Court was therefore required to dispose of the proceedings in accordance with the parties’ agreement.
The Court found the relevant jurisdictional prerequisites had been met. It accepted that the land was suitable for the proposed use for contamination purposes; that the relevant Hawkesbury-Nepean Catchment requirements under the Biodiversity and Conservation SEPP were satisfied; and that the health services facility was permissible with consent under the Transport and Infrastructure SEPP despite being prohibited in the R2 zone under the Penrith LEP.
The Court also accepted that the amended plans addressed the LEP’s urban-heat requirements, including tree-canopy coverage over parking and additional planting. It upheld the appeal, granted development consent subject to Annexure A conditions, and ordered payment of the agreed $8,500 costs within 28 days.
Key Takeaways
- A conciliated Class 1 outcome must still be one the Court could lawfully make; the Court checks jurisdictional prerequisites rather than conducting a merits reassessment.
- A health services facility was permissible with consent under the Transport and Infrastructure SEPP on this R2-zoned land.
- Amended architectural and landscape plans enabled the parties and Court to address the applicable urban-heat and tree-canopy requirements.
Why It Matters
The decision illustrates the function of s 34(3) conciliation orders in NSW planning appeals: once parties agree, the Court must verify that statutory constraints do not prevent the agreed result. It does not decide the originally contested planning merits anew.
For proponents and councils, the case also shows the practical importance of documenting compliance with jurisdictional planning requirements in an agreed statement, particularly where a proposal depends on a SEPP pathway to permissibility and amended plans to resolve design issues.