Background
Emag Apartments Pty Limited lodged Development Application DA-2025/645 on 4 November 2025 seeking consent to demolish existing landscape and hardscape and construct a nine-storey residential flat building with 16 units, ground floor car park, and associated works at 11-13 Gertrude Street, Wolli Creek. The site is zoned R4 High Density Residential under the Bayside Local Environmental Plan 2021. Bayside Council deemed to refuse the application, prompting Emag to appeal to the Land and Environment Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW).
The parties participated in a s 34 conciliation conference on 24 April 2026 presided over by Acting Commissioner AC Sherry. Following negotiations, the parties reached settlement, with Emag amending the application to address Council’s concerns. Key amendments included removal of raised planters, reconfiguration of rooftop communal areas, revised ground-level parking configuration, and addition of three car park stackers. Bayside Council approved the amendments and agreed to the terms of development consent, including conditions addressing contamination, flooding, stormwater, and design matters.
The Court’s Holding
The court determined that the parties’ settlement agreement constituted a decision the Court could lawfully make under s 34(3) of the Land and Environment Court Act 1979 (NSW). Acting Commissioner Sherry was satisfied that the amended proposal complied with all material planning legislation and policies. This included satisfaction that: the contaminated land requirements under State Environmental Planning Policy (Resilience and Hazards) 2021 were met via a Remediation Action Plan; sustainable building standards were achieved through an amended BASIX Certificate; and acoustic requirements under SEPP (Transport and Infrastructure) 2021 were satisfied.
The court approved three planning variations justified under cl 4.6 of the relevant SEPPs and BLEP: (1) car parking provision of 20 spaces (including stackers) against the Apartment Design Guide minimum, justified by site constraints and location; (2) building height of 32.6m exceeding the 29.5m maximum in BLEP cl 4.3, with the respondent satisfied regarding compatible streetscape presentation; and (3) floor space ratio of 2.49:1 exceeding the 2.2:1 maximum in BLEP cl 4.4, consistent with surrounding development context. The court was also satisfied regarding flooding resilience, acid sulfate soils management, stormwater design, and Sydney Airport airspace approval (RL 35.01m AHD).
Key Takeaways
- Development consents can be granted via court-approved settlement agreement when amended plans address the consent authority’s planning concerns, providing a faster resolution pathway than contested litigation.
- Multiple cl 4.6 planning variations (height, FSR, car parking) are defensible when they satisfy zone objectives and environmental planning grounds, particularly for sites with physical constraints or strategic location benefits.
- Residential apartment development requires comprehensive technical evidence covering contamination, flooding, design quality, sustainable buildings, and airport airspace compliance, all managed through conditions of consent.
- Negotiated amendments at the conciliation stage, including design changes (rooftop reconfiguration, parking stackers), can transform a refused application into an approvable proposal.
Why It Matters
This decision illustrates how the Land and Environment Court facilitates negotiated outcomes in development disputes through s 34 conciliation conferences, allowing parties to avoid lengthy contested hearings. The judgment demonstrates that planning variations—particularly height and FSR—are viable where they satisfy statutory tests and the consent authority is persuaded of context-appropriate outcomes. For developers seeking approvals in constrained urban sites near infrastructure (airports, highways), the case confirms that rigorous technical evidence and design responsiveness to planning concerns can overcome initial refusals.
The decision also reinforces that councils have discretion to approve amendments without re-notifying the public if they assess no additional adverse impacts—a significant practical advantage for streamlining development timelines. Finally, the case shows how condition structures (particularly for contamination remediation, stormwater management, and acoustic compliance) provide consent authorities confidence to approve developments on challenging sites, balancing development facilitation with environmental safeguards.