Background
Greg Boyce lodged Development Application DA2024/823 with Maitland City Council seeking consent to demolish an existing dwelling house and sheds and construct a manufactured home estate (MHE) comprising 145 dwelling sites in five stages, along with community facilities, a display suite, and open space at 1064 New England Highway, Lochinvar. When the Council did not determine the application within the statutory timeframe, it was deemed refused, and Boyce appealed to the Land and Environment Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in the Court’s Class 1 jurisdiction.
The matter was initially listed as a contested hearing scheduled to run from 15 to 19 June 2026. The hearing commenced with a site inspection, lay submissions from objectors, and the tendering and examination of expert evidence. Community opposition was significant, with a considerable number of objectors lodging submissions against an earlier version of the proposal.
On the final listed day of the contested hearing, the parties advised the Court that they had reached agreement and requested the matter be converted to a conciliation conference. The agreed resolution involved amending the development application, including the removal of 29 dwelling sites (reducing the total from a higher number to 145), increasing the rear buffer from approximately 64 m to 85 m, and widening the western boundary landscape buffer to 6 m. These changes addressed the Council’s grounds for refusal.
The Court’s Holding
Commissioner Walsh convened a conciliation conference on 19 June 2026 under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The parties confirmed their agreement and the Commissioner was required under s 34(3) of the LEC Act to give effect to the parties’ decision if it was one the Court could have made in the proper exercise of its functions. Applying McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183, the Commissioner assessed whether the decision could have been made — not whether it would or should have been — and confirmed that jurisdictional preconditions to the grant of consent were satisfied.
The Commissioner worked through each applicable statutory and planning instrument precondition. He was satisfied that: the development did not trigger a Biodiversity Development Assessment Report under the Biodiversity Conservation Act 2016 (NSW) and that agreed conditions would protect the Grey-crowned Babbler; the site did not contain core or potential koala habitat; bushfire safety requirements under the Rural Fires Act 1997 (NSW) were met, including acceptance that the proposed 6 m perimeter road carriageway satisfied the performance criteria in Planning for Bushfire Protection 2019 despite departing from the 8 m acceptable solution; and requirements under the Roads Act 1993, Road Transport Act 2013, and the State Environmental Planning Policies on Transport and Infrastructure, Resilience and Hazards, and Housing were each satisfied.
The appeal was upheld and development consent granted subject to conditions in Annexure A. The applicant was ordered to pay the Council’s costs thrown away by reason of the DA amendments, agreed at $93,000 (excluding GST), together with earlier costs orders made on 25 March and 16 June 2026, payable within 7 days of invoice.
Key Takeaways
- Under s 34(3) of the LEC Act, a Commissioner must give effect to a conciliation agreement if the decision is one the Court could have made — the Court does not assess the merits of the original dispute or community objections when implementing such an agreement.
- A departure from an “acceptable solution” in Planning for Bushfire Protection 2019 (here, a 6 m rather than 8 m perimeter road carriageway) does not preclude consent if the relevant performance criteria are demonstrably satisfied by the overall site layout and egress arrangements.
- The Housing SEPP 2021 savings provisions can preserve permissibility of manufactured home estates in zones where caravan parks have ceased to be explicitly listed — here, cl 1.8A(2) of the Maitland LEP maintained that permissibility.
- Where DA amendments cause costs to the opposing party, the Court may order the applicant to bear those thrown-away costs under s 8.15(3) of the EPA Act, even when the overall appeal is upheld.
Why It Matters
This decision illustrates how the Land and Environment Court’s conciliation mechanism can resolve complex, multi-issue planning disputes mid-hearing, allowing parties to reach a negotiated outcome that incorporates community feedback (here, larger buffers and a reduced site count) without requiring the Court to adjudicate contested expert evidence on ecological, traffic, bushfire, and social impact matters. It reinforces that conciliation agreements will be given effect provided the statutory gateway conditions can be established, even where the amended proposal departs from planning instrument “acceptable solutions” provided performance criteria are met.
The case is also a practical reminder to applicants that amendment of a DA after proceedings have commenced may attract a costs order for the respondent’s wasted costs, regardless of the eventual outcome of the appeal. Practitioners advising on manufactured home estate applications in New South Wales should note the Court’s treatment of the Housing SEPP savings provisions and the layered preconditions — spanning biodiversity, bushfire, contamination, roads, and infrastructure SEPPs — that must be addressed before consent power can be exercised.