Background
MPG Funds Management Ltd brought a Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) after Wingecarribee Shire Council refused its development application for properties at 7-11 and 13-19 Kirkham Street, Moss Vale. The application sought approval to demolish an existing single-storey retail building and alter and expand the existing Coles supermarket, including by adding a Liquorland shop.
After an earlier conciliation conference failed, the parties continued negotiating and agreed on acceptable terms for resolving the proceedings. The Council permitted MPG to amend the application to address its contentions, and a further conciliation conference was held before Commissioner Washington on 23 October 2026. The agreement contemplated allowing the appeal and granting consent subject to conditions.
The Court’s Holding
The Court held that the parties’ agreed decision was one it could have made in the proper exercise of its functions. It found the amended development permissible in the E1 Local Centre zone and compliant with the applicable maximum building height and floor-space-ratio controls. It also accepted that the proposal adequately addressed public submissions and applicable requirements concerning heritage, flooding, earthworks, contamination, signage, and the Sydney Drinking Water Catchment.
The Court therefore upheld the appeal and granted development consent subject to the conditions in Annexure A. Conditions reflecting the water authority’s general terms of approval were included because the proposal involved integrated development on waterfront land. MPG was also ordered to pay the Council $5,000 within 28 days for costs thrown away because of the amendments to the application.
Key Takeaways
- The Court may dispose of conciliated proceedings in accordance with the parties’ agreement when satisfied under s 34(3) of the Land and Environment Court Act 1979 (NSW) that the agreed decision is one the Court could properly make.
- The amended supermarket redevelopment complied with the site’s principal height and floor-space-ratio standards and satisfied the relevant environmental, heritage, flood, water-quality, and signage requirements.
- Although MPG succeeded in obtaining consent, it had to pay $5,000 for costs wasted as a result of amending the development application.
Why It Matters
The decision illustrates how a refused development application can be resolved through court-supervised conciliation after amendments address the consent authority’s objections. An agreement between the parties does not itself secure approval: the Court must still identify and assess the jurisdictional prerequisites to granting consent.
It also shows the practical consequences of amending an application during an appeal. Amendments may enable consent to be granted, but the applicant can remain liable for costs caused by the change.