Background
Austral South Nominee Pty Ltd lodged Development Application DA-25-01790 with Blacktown City Council seeking consent to demolish existing structures, remove trees, and subdivide land at 32 Cranbourne Street, Riverstone into 38 Torrens Title and 10 Community Title lots. The proposed works also encompassed bulk earthworks, decommissioning of an existing dam, landscaping, stormwater drainage works (including minor works within a Council Reserve), road construction, retaining walls, and the creation of easements. When the Council failed to determine the application within the statutory timeframe, it was deemed refused, and the applicant lodged a Class 1 Development Appeal in the Land and Environment Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW).
The matter was listed for hearing on 19 and 20 May 2026. However, following joint expert conferencing and further amendments to plans and conditions of consent, the parties agreed that all contested issues had been resolved. At the parties’ request, the hearing was adjourned and the matter was relisted as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW). The conciliation conference was held on 20 May 2026 before Commissioner Porter, and the final agreed terms were submitted to the Court on 2 June 2026. Blacktown City Council, as the consent authority, also approved the applicant’s amendments to the DA under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW).
The site is located within the Riverstone Precinct, zoned R2 Low Density Residential under the State Environmental Planning Policy (Precincts – Central River City) 2021, and is subject to multiple overlapping planning instruments, including policies addressing biodiversity, transport infrastructure, resilience and hazards, and growth centres. The site carried biodiversity certification (due to expire 30 June 2026) and was partly mapped as flood-prone.
The Court’s Holding
Commissioner Porter upheld the appeal and granted development consent to the amended DA, subject to conditions set out in Annexure A. Before giving effect to the parties’ agreed decision under s 34(3) of the Land and Environment Court Act 1979, the Commissioner undertook the required jurisdictional check to confirm there were no legal constraints preventing the Court from making the agreed orders. Consistent with McMillan v Taylor (2023) 111 NSWLR 634 and Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170, this check was limited to jurisdictional prerequisites and did not involve any merit assessment of the originally disputed issues.
The Commissioner was satisfied that all relevant planning requirements had been met, including: permissibility of the subdivision and drainage works under the applicable SEPPs; compliance with flood, stormwater, and water quality provisions; satisfaction of tree removal requirements supported by an arborist report; compliance with Transgrid easement conditions; adequacy of a Stage 2 Detailed Site Investigation confirming site suitability for residential use; and connection of proposed lots to required public utility infrastructure. The applicant was also ordered to pay those costs of the Council thrown away as a result of the amendments to the DA.
Key Takeaways
- Under s 34(3) of the Land and Environment Court Act 1979, once parties to a development appeal reach agreement at a conciliation conference, the Court is obliged to give effect to that agreement provided it is a decision the Court could have made in the proper exercise of its functions — no merit assessment of the original disputes is required.
- The jurisdictional check required before endorsing a conciliation agreement is confined to confirming there are no legal constraints on the proposed orders; it does not extend to an evaluative or merits review of the planning issues: McMillan v Taylor [2023] NSWCA 183 at [60]–[65].
- Applicants who amend a development application during proceedings may be ordered to pay costs thrown away by the respondent consent authority as a result of those amendments, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.
- Biodiversity certification under the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 can substitute for individual species impact assessment under the Threatened Species Conservation Act 1995, but developers must be alert to certification expiry dates.
Why It Matters
This decision is a routine but instructive example of how Class 1 development appeals in the Land and Environment Court of New South Wales are frequently resolved through the s 34 conciliation process. The case illustrates the practical value of that mechanism: contested issues were resolved through expert conferencing and plan amendments before the scheduled hearing, avoiding a full merits hearing and reducing costs and delay for both parties. Developers and councils operating in Sydney’s growth precincts should note the layered regulatory framework — multiple SEPPs governing biodiversity, flood hazard, transport infrastructure, and precinct-specific controls — that must be navigated and documented before consent can be granted.
The costs order against the applicant for amendments made during proceedings is also a practical reminder that mid-proceeding changes to a DA, while permissible, carry a financial consequence under s 8.15(3) of the EPA Act. Legal practitioners advising applicants in similar appeals should factor in the risk of wasted-costs orders when advising clients on whether and when to amend applications once litigation has commenced.