Background
Cooper View Developments appealed against Woollahra Municipal Council’s deemed refusal of DA307/2025 for alterations and additions to an already approved 13-unit residential flat building at 214–218 Victoria Road, Bellevue Hill. The amended proposal would produce 15 apartments and rely on the State Environmental Planning Policy (Housing) 2021 affordable-housing provisions.
The parties attended a conciliation conference under s 34 of the Land and Environment Court Act 1979 on 23 April and 20 May 2026. They subsequently executed an agreement supporting approval of the amended application subject to conditions. The proposal included three affordable-housing units, to be managed by a registered community housing provider for at least 15 years.
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’ agreed decision was one the Court could make in the proper exercise of its functions, requiring it to dispose of the proceedings in accordance with the s 34 agreement.
The Court was satisfied that the applicable jurisdictional preconditions had been met. It accepted that the amended plans complied with the applicable height and floor-space controls, including the affordable-housing uplift; provided the required affordable-housing floor area; and adequately addressed matters including contamination, vegetation, traffic noise, BASIX, apartment design and tree canopy. It also accepted the clause 4.6 justification for departing from the Housing SEPP four-storey standard. The applicant was ordered to pay $8,000 in the Council’s thrown-away costs within 28 days.
Key Takeaways
- A s 34 conciliation agreement must be implemented where the Court is satisfied it could lawfully make the agreed decision.
- The affordable-housing uplift was available because the amended scheme provided at least 15% of gross floor area as affordable housing and secured management for 15 years.
- The Court expressly noted it did not undertake a merits assessment of discretionary s 4.15 matters when making orders to give effect to the parties’ agreement.
Why It Matters
The decision illustrates how a residential development appeal can be resolved through Court-facilitated conciliation after amended plans and conditions address the parties’ planning concerns. It also shows the practical operation of the Housing SEPP’s affordable-housing incentives, including additional floor space and associated long-term management obligations.
For practitioners, the case underscores the need for a complete evidentiary record establishing each jurisdictional precondition before a consent order can be made under s 34, even where the parties are aligned.