Background
87 WRN Pty Ltd appealed the Hills Shire Council’s refusal of DA 601/2025/ZE for a small-lot housing development at 87 Windsor Road, Norwest. The proposal involved demolition, tree removal, roads and a two-stage subdivision creating eight residential lots, 15 community-title residential lots, a community-association lot and a road-widening lot, with dwellings on the residential lots.
After an earlier conciliation attempt did not resolve the appeal, the matter proceeded to a hearing on 10 and 11 September 2026. During the hearing, the parties reached agreement and requested a further conciliation conference. The Council agreed to amendments to the application, including updated plans and supporting material, and the parties proposed that consent be granted subject to conditions.
The Court’s Holding
Commissioner Washington upheld the appeal and granted development consent subject to the agreed conditions. Under s 34(3) of the Land and Environment Court Act 1979 (NSW), the Court was required to dispose of the proceedings in accordance with the parties’ agreed decision if it was one the Court could properly make.
The Commissioner found that the necessary jurisdictional matters were satisfied. These included owner consent, notification, biodiversity assessment and offsets for vegetation clearing and threatened-species impacts, site suitability in relation to contamination, Sydney Harbour Catchment requirements, BASIX compliance, permissibility and subdivision controls under The Hills Local Environmental Plan 2019, height compliance, heritage impacts, infrastructure and earthworks. The applicant was ordered to pay the Council’s costs thrown away by the amended application, in an agreed or assessed amount.
Key Takeaways
- A Class 1 development appeal may be resolved through a s 34 conciliation agreement where the agreed outcome is within the Court’s proper powers.
- The Court must still be satisfied that statutory prerequisites for development consent are met, notwithstanding the parties’ agreement.
- Amendments addressing planning and environmental issues can support consent, but may expose an applicant to thrown-away costs under s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).
Why It Matters
The decision illustrates the Land and Environment Court’s role in giving effect to negotiated planning outcomes while independently confirming that the proposal can lawfully be approved. The parties’ agreement did not remove the need to address biodiversity, land-use controls, environmental constraints and other statutory considerations.
For developers and councils, it also highlights the practical value of revising an application during proceedings to resolve disputed issues, alongside the potential costs consequence of doing so.