Background
The applicant, 26 Hume Avenue Holding Pty Ltd, lodged Development Application No 429/2025/HA seeking approval for a seven-storey residential flat building comprising 27 units and 4 independent living units (seniors housing), two levels of basement parking, and removal of 8 trees at 71 Cecil Avenue and 26 Hume Avenue, Castle Hill. The site spans two lots in the R4 High Density Residential zone under The Hills Local Environmental Plan 2019. When the council failed to determine the application within the statutory timeframe, the applicant appealed to the Land and Environment Court on 31 October 2025 under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) against the deemed refusal.
In April 2026, the Court granted leave to amend the application. The amendments reduced the building by one storey and removed the seniors housing component entirely, producing a revised proposal for a six-storey building with 27 residential units and two basement parking levels. The matter initially proceeded as a hearing but, after the parties reached agreement, was relisted as a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW), held on 1 June 2026 before Commissioner H Miller AC.
The proposed development raised a number of compliance issues. The 1,565 m² site fell below the 4,000 m² minimum allotment size for residential flat buildings under cl 4.1A of the LEP, and the building’s maximum height of 24.7 m exceeded both the 16 m LEP height limit under cl 4.3 and the 22 m non-discretionary standard under s 180 of the State Environmental Planning Policy (Housing) 2021. The site also lay within a flood planning area and required referral to Endeavour Energy due to proximity to overhead electricity lines.
The Court’s Holding
At the conciliation conference, the parties reached a binding agreement under s 34(3) of the LEC Act for the grant of development consent subject to conditions. The Commissioner, having reviewed the Jurisdictional Statement, expert reports, and the full application documents, was satisfied that the agreed decision was one the Court could have made in the proper exercise of its functions — the statutory test under s 34(3) of the LEC Act. The Court accordingly upheld the appeal and granted development consent for the amended six-storey, 27-unit residential flat building, subject to the conditions set out in Annexure A.
On the non-compliances with height and lot size, the Court accepted that the cl 4.6 variation requests submitted by Glyde Consulting were well founded, permitting departure from both the LEP height limit and the minimum allotment size standard, as well as from the non-discretionary building height standard in the Housing SEPP. Flood risks were addressed through a joint expert flooding report and updated Flood Impact and Risk Assessment prepared by Hydracor Consulting Engineers, with corresponding flood mitigation conditions imposed. Contamination, stormwater, biodiversity, energy, and design quality requirements under the applicable State Environmental Planning Policies were each found to be satisfied on the evidence before the Court.
The Commissioner noted expressly that, because the matter was resolved by conciliation agreement under s 34, no merits assessment of the discretionary matters under s 4.15 of the EPA Act was required or undertaken. Nine public submissions received across two notification rounds were taken into account in the course of reaching the agreement.
Key Takeaways
- A deemed refusal of a residential flat building development application can be resolved by conciliation under s 34 of the LEC Act, with the Court giving effect to an agreed outcome without conducting a full merits hearing.
- Departures from both LEP development standards (minimum lot size and maximum height) and non-discretionary Housing SEPP height standards may be authorised through cl 4.6 variation requests if well founded on the evidence.
- Where a site is in a flood planning area, in the Hawkesbury-Nepean Catchment, and near overhead power lines, compliance with multiple State Environmental Planning Policies — including the Housing, Resilience and Hazards, Biodiversity and Conservation, Transport and Infrastructure, and Sustainable Buildings SEPPs — must be demonstrated to the Court’s satisfaction before consent can issue.
- Amendments reducing the scale and use of a development (here, dropping one storey and removing a seniors housing component) can facilitate resolution of a planning appeal at the conciliation stage.
Why It Matters
This decision illustrates the practical utility of the Land and Environment Court’s conciliation process for contested residential flat building applications in Sydney’s north-west. Where a developer and council can negotiate amended plans and agreed conditions, the s 34 process allows consent to be granted without the cost and delay of a full merits hearing — even where the proposal involves multiple non-compliances with development standards that require formal cl 4.6 variation justification.
The case also highlights the regulatory complexity facing mid-rise residential development in areas recently brought within the “low and mid rise housing inner area” under the Housing SEPP, where overlapping non-discretionary standards, tree canopy requirements, flood constraints, and biodiversity catchment rules must all be navigated simultaneously. It underscores that height non-compliances — even against non-discretionary standards — are not necessarily fatal if supported by well-founded variation requests and expert evidence addressing the relevant planning objectives.