Background
CCD Productions Pty Ltd (the “Applicant”) sought to demolish existing structures and build four two-storey townhouses in Kirrawee, a suburb of Sydney. The local council, Sutherland Shire Council (the “Respondent”), refused the development application (DA). The Applicant appealed the council’s refusal to the Land and Environment Court of New South Wales.
Before the matter proceeded to a full hearing, the Court directed the parties to a conciliation conference. During the conference, the developer and the council reached an agreement. The terms of their agreement were that the appeal should be upheld and development consent granted, subject to amended plans and a set of agreed-upon conditions.
The Court’s Holding
The Court upheld the appeal and granted development consent, formalizing the agreement reached between the parties. Under the Land and Environment Court Act 1979, the Court must dispose of proceedings in accordance with an agreement of the parties, provided the decision is one the Court could have made in the proper exercise of its functions. The Commissioner’s role was not to conduct a merit assessment but to verify that all statutory preconditions for granting consent were met.
The Court reviewed the proposal against relevant state and local planning laws, including zoning rules, flood planning, and stormwater management. A key issue was that the proposed development provided a landscaped area of 33.33%, falling just short of the 35% standard required by the local environmental plan. The Applicant filed a “Clause 4.6 request” to justify this contravention. The Court was satisfied that the applicant had demonstrated that strict compliance was “unreasonable or unnecessary in the circumstances” and that there were “sufficient environmental planning grounds” to justify the minor departure, noting the objectives of the standard were still achieved and the shortfall was only 20m² on a 1225m² site. After confirming all other legal requirements were met, the Court issued orders granting consent and also ordered the developer to pay the council $12,500 for costs related to the amendment of the application.
Key Takeaways
- The Land and Environment Court will often formalize agreements reached between parties in conciliation, so long as the agreed outcome is lawful and within the court’s power to order.
- Minor contraventions of development standards (such as minimum landscaped area) can be justified through a “Clause 4.6 request” in New South Wales.
- To succeed with such a request, an applicant must demonstrate that compliance is unreasonable or unnecessary and that there are sufficient environmental planning grounds for the variation.
- Even when parties agree on an outcome, the Court must still be independently satisfied that all statutory prerequisites for granting development consent have been fulfilled.
Why It Matters
This decision illustrates the importance of the conciliation process in resolving planning and development disputes in New South Wales. It shows the Court’s function is often to facilitate and validate agreements between developers and councils, rather than imposing a decision after a contested hearing. This approach promotes efficiency and collaboration, saving time and resources for all parties involved.
Furthermore, the case serves as a practical example of the flexibility within the NSW planning system. It confirms that development standards are not always rigidly enforced, and minor, well-justified departures can be approved, particularly when the underlying objectives of the planning controls are not compromised. This provides clarity for developers and councils on the pathway for seeking variations from development standards.