Background
Annagrove Grace Pty Ltd appealed under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) against Liverpool City Council’s refusal of a development application for land at 83 Tenth Avenue, Austral. As amended during the proceedings, the proposal comprised a medical centre, a 100-square-metre neighbourhood shop, an 80-place centre-based child care facility, at-grade parking, and associated civil and landscaping works.
At a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW), the parties discussed changes that would permit agreement. After the conference was adjourned for preparation and review of amended plans and consent conditions, the parties filed an agreement supporting approval of the amended application subject to conditions.
The Court’s Holding
The Court held that the parties had reached an agreement and that their agreed decision was one the Court could lawfully make in the proper exercise of its functions. The Acting Commissioner found no jurisdictional impediment after addressing matters including zoning and development standards, biodiversity certification, bushfire mapping, infrastructure, catchment impacts, contamination and remediation, pipeline safety, child-care space requirements, heritage impacts, and the applicable development control plan.
The Court granted leave to rely on the amended plans, upheld the appeal, and granted development consent subject to the conditions in Annexure A. Annagrove Grace was ordered to pay the Council’s costs thrown away because of the amendments, as agreed or assessed. Because the orders implemented a s 34 agreement, the Court expressly stated that it had not independently assessed the proposal’s merits against the discretionary considerations under s 4.15 of the Environmental Planning and Assessment Act.
Key Takeaways
- A Land and Environment Court conciliation agreement may be implemented only if the agreed outcome is one the Court could lawfully have made.
- The amended development complied with the 12-metre height limit and the 100-square-metre cap for a neighbourhood shop, while conditions addressed remediation, utilities, environmental management, and other regulatory requirements.
- The consent resulted from the parties’ agreement rather than a contested merits determination, and the applicant remained liable for costs thrown away by its amendments.
Why It Matters
The decision illustrates the Court’s role when resolving a Class 1 planning appeal by agreement: it must verify jurisdiction and legal permissibility but need not conduct a full discretionary merits assessment. It also shows how amendments and detailed conditions can resolve objections concerning a mixed-use proposal involving child care, medical, retail, infrastructure, contamination, and pipeline-safety issues.