Background
The applicant appealed under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) against MidCoast Council’s refusal of an application concerning land at 40–80 and 82 Chapmans Road, Tuncurry. The amended proposal involved subdividing the land and establishing a land-lease community with 273 manufactured-home sites, a clubhouse and recreational facilities, internal roads, parking, drainage infrastructure and stormwater basins.
Following a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW), the parties agreed that the appeal should be upheld and consent granted subject to conditions. The Court then examined whether their agreed decision was one it could properly have made, including whether the proposal was permissible and whether requirements concerning bushfire safety, biodiversity, koala habitat, coastal wetlands, flooding, contamination, subdivision and essential services had been satisfied.
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 therefore upheld the appeal and granted consent to amended Development Application DA2024/1070, subject to the conditions in Annexure A.
The Court also upheld the applicant’s cl 4.6 request to vary the 8.5-metre building-height standard. Although limited parts of the community building would reach 11.41 metres, the Court accepted that the additional height resulted from raising the building to serve as a flood refuge, affected only limited roof elements and would not cause significant environmental, visual, privacy or amenity impacts. Because the orders implemented a conciliation agreement under s 34(3), the Court expressly stated that it had not undertaken a merits assessment of the discretionary matters under s 4.15(1). The applicant was ordered to pay the Council’s costs thrown away because of amendments to the application.
Key Takeaways
- A court may implement a conciliation agreement only after satisfying itself that the agreed outcome is one it could properly have reached.
- The consent authorizes a 273-site manufactured-home estate, subject to extensive conditions addressing matters including biodiversity credits, bushfire safety, flooding, contamination, coastal impacts and infrastructure.
- The height variation was justified because the exceedance was confined to parts of a centrally located community building raised to function as a flood refuge.
Why It Matters
The decision illustrates the jurisdictional review required before the Land and Environment Court can give effect to an agreement reached in a Class 1 planning appeal. Even where the parties settle, the Court must independently confirm permissibility and satisfaction of statutory prerequisites.
It also shows how flood-resilience requirements can supply environmental planning grounds for varying a height standard, particularly where the exceedance is limited and produces no significant off-site impacts. The judgment should not, however, be treated as a full merits determination because the Court expressly disclaimed undertaking that assessment.