Background
Amcha 2 Bare Pty Ltd, Abdou Amcha and Therese Ann Amcha appealed Canterbury-Bankstown Council’s refusal of DA1076/2025. The application sought demolition of existing structures and construction of a two-storey centre-based childcare facility for 104 children, with basement parking, at 134 and 134A Boronia Road, Greenacre.
At a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW), the parties agreed on an amended proposal and conditions of consent. The Council had notified the original application and received 13 submissions.
The Court’s Holding
Commissioner Porter upheld the appeal and granted development consent for the amended application, subject to the agreed conditions in Annexure A. The applicants were also ordered to pay the Council’s agreed costs of $2,000 within 28 days.
The Court held that the parties’ agreement was a decision the Court could make in the proper exercise of its functions under s 34(3). It was satisfied that jurisdictional prerequisites had been met, including owner’s consent and the applicable planning controls concerning zoning, building height, floor-space ratio, flooding, contamination, childcare-space requirements and the statutory heads of consideration.
Because this was a s 34 agreement, the Court did not conduct a merits assessment of the matters originally disputed, including objections. Its role was confined to determining whether any jurisdictional constraint prevented the agreed outcome.
Key Takeaways
- A conciliation agreement may be implemented where the Court is satisfied that it is legally available under s 34(3).
- The Court’s jurisdictional review is not a fresh merits assessment of the development or objections.
- The amended childcare proposal received consent, with the applicants to pay agreed costs of $2,000.
Why It Matters
The decision illustrates the limited function of the Land and Environment Court when parties resolve a Class 1 development appeal through conciliation. The Court must verify that there is power to make the agreed decision, rather than re-decide planning merits.
For development applicants and consent authorities, it confirms that amendments and agreed conditions can resolve a refusal appeal where the resulting proposal satisfies the relevant jurisdictional and statutory requirements.