Background
Bencr Pty Ltd appealed under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) from Woollahra Municipal Council’s deemed refusal of DA316/2025/1. The application sought to demolish existing structures at 28 Birriga Road, also known as 18A Benelong Crescent, Bellevue Hill, and construct a nine-unit residential flat building with basement parking, landscaping and associated works.
The parties participated in a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) and reached agreement on an amended proposal and conditions of consent. The amended scheme exceeded the applicable 13.5-metre height limit, with a maximum height of 14.87 metres, and the 1:1 floor-space-ratio limit, proposing 1.32:1.
The Court’s Holding
Acting Commissioner Bilmon upheld the appeal and granted development consent subject to the agreed conditions. The Court held that the parties’ s 34 agreement was a decision the Court could make in the proper exercise of its functions, requiring the Court to give effect to it under s 34(3) of the Land and Environment Court Act.
The Court was satisfied that the preconditions for consent had been met, including the applicable planning, BASIX, apartment-design, vegetation, stormwater and site-suitability requirements. It accepted the applicant’s cl 4.6 requests as adequately justifying the height and floor-space-ratio departures. The applicant was ordered to pay the Council $19,000 in thrown-away costs within 28 days under s 8.15(3) of the Environmental Planning and Assessment Act.
Key Takeaways
- A Class 1 deemed-refusal appeal may be resolved by a conciliation agreement where the agreed outcome is one the Court could lawfully make.
- The Court approved the amended nine-unit development despite height and floor-space-ratio non-compliances, accepting the agreed cl 4.6 justifications.
- The decision gave effect to the parties’ agreement and did not involve an independent merits assessment of discretionary s 4.15 matters.
Why It Matters
The decision illustrates the Land and Environment Court’s statutory role in a successful s 34 conciliation: it must verify that jurisdictional requirements are met and that the agreed consent is within power, then make orders reflecting the agreement.
For development applicants and councils, it also shows that amended designs can resolve planning disputes during an appeal, including departures from numerical development standards, provided the statutory pathway and supporting material are satisfactory.