Background
Pearl Energy No 5 Pty Ltd sought development consent from Queanbeyan–Palerang Regional Council for works at an existing service station at 42–44 Malbon Street, Bungendore. The proposed development (DA.2025.0425) involved the demolition of a food and drink premises and an existing fuel tank, removal of two trees, and construction of a diesel canopy, underground fuel tank, earthworks, drainage, acoustic fence, and signage. The Council refused the application, prompting Pearl Energy to appeal to the Land and Environment Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW).
The Court convened a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) on 26 May 2026. During that conference, the Council confirmed that the development application, as amended, had resolved its legislative and merit concerns. The parties reached agreement on the grant of consent subject to conditions, and one public submission had been received during the notification period; members of the public also addressed the Court at the commencement of the conciliation.
Commissioner Dickson assessed whether the statutory preconditions to giving effect to the parties’ agreement were satisfied, working through the applicable environmental planning instruments including the Queanbeyan-Palerang Regional Local Environmental Plan 2022, multiple State Environmental Planning Policies, and the Palerang Development Control Plan 2015.
The Court’s Holding
Commissioner Dickson upheld the appeal and granted development consent. Applying the two-condition test from McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183, the Commissioner was satisfied that the parties had reached a genuine agreement and that the decision was one the Court could make in the proper exercise of its functions. Accordingly, s 34(3)(a) of the Land and Environment Court Act 1979 required the proceedings to be disposed of in accordance with that agreement.
The Commissioner methodically confirmed compliance across all relevant instruments: the site’s E1 Local Centre zoning permitted service station and signage uses; the development met height standards; earthworks, essential services, and stormwater management were acceptable under the LEP; signage was consistent with the objectives in the State Environmental Planning Policy (Industry and Employment) 2021; a preliminary hazard analysis confirmed the development was not potentially hazardous under the State Environmental Planning Policy (Resilience and Hazards) 2021; and traffic access requirements under the State Environmental Planning Policy (Transport and Infrastructure) 2021 were satisfied, including because the upgraded access off Butmaroo Street improved site ingress for trucks without adversely affecting Malbon Street (a classified road).
The Commissioner noted that no jurisdictional impediment existed to making the orders and that, because the matter was resolved by agreement, no independent merits assessment under s 4.15 of the EPA Act was required or undertaken.
Key Takeaways
- Where parties to a Land and Environment Court Class 1 appeal reach agreement at a s 34 conciliation conference, the Commissioner must dispose of proceedings in accordance with that agreement once satisfied it is a decision the Court could make in the proper exercise of its functions (McMillan v Taylor [2023] NSWCA 183 applied).
- Agreement at conciliation does not require the Court to conduct a full merits assessment under s 4.15 of the EPA Act; the Commissioner need only confirm the two statutory conditions are met.
- Proposals affecting a classified road frontage must satisfy all three limbs of s 2.119 of the SEPP (Transport and Infrastructure) 2021; here, upgraded secondary-road access and a noise assessment supported by conditions of consent satisfied those requirements.
- A preliminary hazard analysis consistent with NSW Department of Planning guidelines was sufficient to confirm the service station upgrades did not constitute potentially hazardous or offensive development under SEPP (Resilience and Hazards) 2021.
Why It Matters
This decision illustrates the efficiency of the Land and Environment Court’s conciliation process for routine development appeals. By amending the application to address Council’s concerns, the applicant converted a refusal into a consent without contested hearing, demonstrating that early engagement and willingness to negotiate conditions can resolve planning disputes quickly and cost-effectively.
For practitioners, the judgment offers a clear worked example of the multi-instrument compliance checklist a Commissioner must tick off before giving effect to a conciliated agreement — spanning zoning permissibility, height limits, earthworks, essential services, signage policy, hazard analysis, contaminated land, classified road access, and noise — even where no contested merits assessment is required.